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ox    THE 


LAW    OF    ESTOPPEL 


AND 


RES    JUDICATA. 


BY 


HENET   M.    HERMAN, 

COTJNSELLOE-AT-LAW, 

Author  OF  THE  "Law  op  Executions,'  "Chattel  Mortgages,"  &c. 


'Omne  jns,  quo,  ntimiir,  vol  ad  personas  patinet  vol  ad  res,  vel  actiom-s 


VOL.    11. 


JERSEY  CITY,  N.  J.  : 
F.    D  .    L  1  N  N    &    C  O  M  P  A  JN  Y 

1886. 


T 


Copyright,  by 

Henry  M.  Herman, 

1886. 


HENRV    M.    TOBITT, 

PRINTER    AND    STEREOTYPER, 

42    DEY     STREET,    N.     Y. 


BOOK  II. 


CHAPTER  VTII. 

ESTOPPEL  BY  DEED  OR  MATTER  IN   "WRITING. 

Origin,  nature  and  history — General  doctrine  as  to  estoppel  by  deeds —    • 
Mutuality  of  estoppels — Parties  affected  by — Married  women,  infants, 
etc. — Parties  and  privies,  who  are — Effect  of    deeds — Contracts  in 
writing,  etc. — Certificates  of  acknowledgment §§  573-605 

CHAPTER  IV. 

RECITALS. 

General  doctrine  as  to — Distinction  between  general  and  special  recitals — 
Recital  of  title — Effect  of  recitals  in  deeds — Recital  in  bonds — Sure- 
ties, when  bound  by — Miscellaneous  recitals §§  606-G39 

CHAPTER    X. 

TITLE  BY  ESTOPPEL. 

How  the  interest  when  it  accrues  feeds  the  estoppel — After  acquired  title, 
when  it  inures  by — Estoppel,  doctrine  in  regard  to — Quit-claim  deeds 
— Covenants  creating  an  estoppel — Deeds  tliat  do  and  do  not  convey 
an  after  acquired  title — Dower,  etc. ,  how  affected  by §§  640-700 

CHAPTER  XI. 

LEASES  BY  ESTOPPEL. 

Doctrine  of,  lessor  estopped  to  deny  that  interest  passes — After  acquired 
title  when  it  passes  in — Lessor  estopped  from  denying  title — Who 
affected  by — When  the  estoppel  runs  with  the  land — Effect  of  words, 
"  Grant  and  Demise  " — Recitals  in — Dower,  widow  barred  by— Parol 

assignments  of  dower §§  701-739 

[705] 


Estoppel  by  Deed.  707 


CHAPTER  VIII. 

ESTOPPEL  BY  DEED,    OR  MA.TTER  IN   WRITING. 

Section  573.  This  branch  of  the  law  of  estoppel,  by  matter 
in  writing  or  by  deed,  is  a  branch  of  the  law  which  does  not 
allow  or  permit  a  sealed  instrument  to  be  controverted  or  contra- 
dicted by  any  evidence  of  less  solemnity  than  its  own.  It  is  a 
well  settled  principle  of  law  that  a  written  contract  cannot  be 
varied  by  parol  evidence,  and  this  branch  of  the  law  of  estoppel 
forbids  any  variation  of  the  contract,  and  leaves  all  that  lies 
beyond  its  variation  to  the  ordinary  means  of  proof.  No  mere 
written  agreement  or  oral  stipulation  entered  into  between  the 
parties  to  a  deed,  at  the  time  of  the  making  and  execution  thereof, 
can  be  given  in  evidence  to  control  or  qualify,  or  enlarge,  or  in 
any  way  alter  or  affect  the  express  terms  of  the  contract ;  nor  can 
the  operation  of  a  deed  be  restricted,  or  tlie  liability  created  by 
it,  be  lessened  or  discharged  by  an  indorsement  under  hand  only, 
or  by  any  subsequent  contract  or  agreement  in  wi-iting,  not  under 
seal.  But  an  indorsement  on  a  deed  may  operate  as  a  collateral 
and  independent  contract,  and  may  add  to  the  liabilities  and 
obligations  contained  in  the  deed  itself.  Every  deed  takes  effect 
in  general  from  the  time  of  its  execution  and  not  from  the  date 
inscribed  in  the  body  of  the  instrument.  That  date  is  to  be  taken 
prima  facie  as  the  true  time  of  execution,  but  as  soon  as  the  con- 
trary appears  the  apparent  date  is  to  be  disregarded. 

§  574.  The  rule  of  law  which  estops  a  party  from  disputing  or 
contradicting  what  he  has  affirmed  or  declared  by  deed  does  not 
extend  to  strangers  to  the  contract.'  Where  the  public,  or  third 
persons  for  example,  have  an  interest  in  the  real  nature  of  a 
transaction  under  seal  between  two  or   more  parties,  they  are  not 

'  Gooddl  V.  Bennett,  22  Wis.  563;  man  v.  Clapp,  21  Wis.  350;  Sunderlin 
Avery  v.  Judd,  21  Wis.  262;  Winter-  v.  Struthers,  47  Pa.  St.  411;  Rex  v. 
field  V.  Strauss,  24  Wis.  394;  Wood-      Scammonden,  3  T.  R.  474. 


708  The  Law  of  Estoppel. 

bound  by  the  representations  and  averments  of  those  parties,  but 
may  impeach  them  and  contradict  them  by  parol  or  oral  testi- 
mony. It  is  almost  a  universal  system  of  jurisprudence,  to  give 
a  decided  preference  to  written  memorials  over  verbal  representa- 
tions, founded  on  the  doubtful  or  imperfect  recollection  of  wit- 
nesses. The  French  law  requires  a  very  large  class  of  contracts 
to  be  put  in  writing,  "  in  consequence,"  it  observes,  "  of  the  cor- 
ruption of  manners  and  subornation  of  witnesses,''  and  formally 
prohibits  the  admission  of  oral  evidence  against  the  contents  of  a 
written  document.  It  is  a  fundamental  rule  of  the  common  law 
that  oral  evidence  shall  not  be  given,  to  add  to,  subtract  from,  or 
alter  or  vary  any  description  of  written  contract ;  "  quoties  in 
xerVie  nulla  est  amhiguitas,  nulla  expositio  contra  verba  fienda 
estr  This  general  rule  or  principle  of  law  has  been  established 
on  the  grounds  that  the  writing  stands  higher  in  the  scale  of 
evidence  than  the  oral  testimony,  and  that  the  stronger  evidence 
ought  not,  therefore,  to  be  controlled  or  altered  by  the  weaker. 

§  575.  A  party  who  enters  into  a  contract  in  writing,  without 
any  fraud  or  in)position  practiced  upon  liim,  is  conclusively  pre- 
sumed to  understand  and  assent  to  its  terms  and  legal  effect.' 

If  a  man  execute  a  deed,  calling  himself  tlierein  a  certain 
name,  he  will  not  be  admitted  to  take  advantage  of  the  fact  that 
it  is  not  his  true  name.* 

Where  a  party  makes  an  incorrect  return  of  his  property 
liable  to  taxation  he  is  estopped  to  deny  its  correctness.^ 

Where  a  statute  requires  a  ministerial  officer,  like  a  sheriff,  to 
make  a  return  of  his  doings  in  making  a  levy,  for  instance,  upon 
land,  such  return  is  conclusive  evidence  between  the  creditor  and 
debtor  in  the  execution,  and  all  persons  claiming  under  them 
respectively.* 

It  is  a  sound  rule  of  law  that  a  written  contract  cannot  be 
altered  or  varied  by  parol  proof.'     This  excellent  rule  of  law  is 

'  Rice  V.   Dwigbt  Co.,  2  Cusb.  80;  Whittaker  v.    Sumner,    7  Pick.  551; 

Gavagan  v.  Bryaut,  83  HI.  376;  Hun-  Butts  v.  Francis,  4  Conn.  424;  Miller 

terv.  Miller,  G  B.  Mon.  612;  Bank  V.  v.    Moses,     59     Me.     129,    Ante,    §§ 

^  Daniel,  12  Pet.  56.  451,  452  ;  Anthony  v    Bartbolow,  69 

3  Com.  Dig.  B.  1.  Mo.  186. 

=*  Telle  V.  Green,  28  Ind.  184;  Con-  =  Van  Syckle  v.  Dalrymple,  32  N. 

well  V.  President,  8  Ind.  358.  J.  E.  233;  S.  C,  826. 

•»Bott    V.    Burnell.    11    Mass.    163; 


Estoppel  by  Deed.  709 

intended  to  guard  against  fraud  and  perjuries,  and  it  cannot  be  too 
steadily  enforced  and  supjjorted  by  courts  of  justice.  Exjpressum 
facit  cessare  tacittirn — vox  emissa  volat — litera  scripta  mmiet^  are 
law  axioms  in  support  of  this  rule,  and  law  axioms  are  nothing 
more  than  the  conclusions  of  common  sense,  which  have  been 
formed  and  approved  by  wisdom  of  ages.  This  rule  prevails 
equally'  in  a  court  of  equity  and  a  court  of  law.  Generally  speak- 
ing, the  rules  of  evidence  are  the  same  in  both  courts,  and  if 
words  of  a  contract  be  intelligible  there  is  no  instance  where 
parol  proof  has  been  permitted  to  give  them  a  different  sense. 
You  can  introduce  nothing  on  parol  proof  that  adds  to  or  deducts 
from  the  writing.  If,  however,  through  fraud  or  mistake,  it  is 
made  to  speak  a  different  language  from  what  was  intended,  the 
estoppel  does  not  apply.  These  are  the  only  cases  that  form  an 
exception  to  the  rule. 

§  576.  In  what  manner  a  deed  or  contract  is  to  operate  must 
be  ascertained  from  its  own  language ;  on  what  it  is  to  operate 
may  be  gathered  from  the  whole  field  of  parol  evidence ;  whether 
the  parties  were  under  a  disability,  sui  juris,  by  what  right  or 
authoi'ity  they  conveyed,  what  the  location  is,  or  the  quantity  of 
the  land  conveyed,  and  what  the  title  of  the  grantor  is,  may  ordi- 
narily be  sought  outside  the  deed,  and,  as  is  frequently  tlie  case, 
can  be  ascertained  in  no  other  way.  Notwithstanding  these 
matters,  the  parties  to  a  deed  ©r  contract  may  agree  to  bind 
themselves  in  this  respect  b}''  stating  a  particular  state  of  things 
as  a  part  or  basis  of  the  grant  or  contract.  And  when  this  is  done 
with  sufficient  clearness  so  as  to  leave  no  doubt  as  to  the  inten- 
tion, it  falls  within  the  general  principle  that  matters  which  have 
been  solemnly  reduced  to  writing  cannot  be  denied,  and  consti- 
tutes an  estoppel  by  deed.  So  far  as  a  deed  is  intended  to  pass, 
or  extinguish  a  right,  it  is  the  exclusive  evidence  of  the  contract, 
and  the  party  is  concluded  by  its  terms,  but  the  deed  is  not  con- 
clusive evidence  of  the  existence  of  facts  acknowledged  in  the 
instrument,  such  as  its  date,  acknowledgment  of  payment,  con- 
sideration,' etc.  There  are  few  rules  of  law  that  are  better 
established  or  of  greater  antiquity  than  the  one  which  has  firmly 
settled  the  question,  that  a  man  may  irrevocably  bind  himself  by 

»  Rhine  v.  Ellen,  36  Cal.  362. 


710 


The  Law  of  Estoppel. 


putting  his  seal  to  a  grant  or  covenant,  and  that  he  will  not  be 
allowed  to  disprove  or  contradict  any  declaration  or  averment 
contained  in  the  instrument  and  essential  to  its  purpose.  A 
recital  or  allegation  in  a  deed  or  bond,  which  is  certain  in  its 
terms  and  relevant  to  the  matter  in  hand,  is  conclusive  between 
the  parties  to  the  controversy  growing  out  of  the  instrument 
itself  or  the  transaction  in  which  it  was  executed.'  That  no  man 
shall  be  allowed  to  dispute  his  own  deed,  for  it  is  not  only  con- 
clusive upon  the  party  executing  it  as  to  the  very  point  intended 
to  be  effected  by  the  instrument,  but  also  as  to  the  facts  recited 
in  it,  is  a  well  settled  principle  of  law.^  No  one  can  be  per- 
mitted, except  on  the  ground  of   fraud  or  deceit,  to  aver  or  to 


'  Root  V.  Crook,  7  Pa.  St.  378; 
Carver  v.  Jackson,  4  Pet.  1 ;  Mann  v. 
Eckford,  15  "Wend.  502;  Jackson  v. 
Brooks,  8  Wend.  426 ;  Jackson  v. 
Parkhurst,  9  Wend.  209;  Van  Rensse- 
laer V.  Kearney,  11  How.  297;  Francis 
V.  Boston  Co.,  4  Pick.  868;  Stebbins  v. 
Smith,  4  Pick.  97;  Baylcy  v.  McCoy, 
8  Greg.  259;  Beckett  v.  Bradley.  7  M. 
&  G.  994;  Young  v.  Raincock,  7  C.  B. 
310;  Stow  V.  Wyse,  7  Conn.  214;  In- 
skcepv.  Shields,  4Harriug.  345;  Hag- 
gart  V.  Morgan,  5  N.  Y.  422;  Russell 
V.  Peyton,  4  111.  App.  473;  Miller  v. 
Elliott,  1  Ind.  484;  Esterbrook  v. 
Savage,  21   Hun,  145;  Dyer  v.  Rich, 

1  Met.  180;  Robbiiis  v.  McMillan,  4 
Cush.  434;  Rankin  v.  "Warner,  2  Lea, 
302;  Box  V.  Lawrence,  14  Tex.  545; 
People  V.  McCuraber,  27  Baib.  32; 
Byruev.  Morehouse.  22  111.  G03;  Cordle 
V.  Burch,  10  Gratt.  486;  Wiles  v. 
Woodward,  4  E.  L.  &  Eq.  510. 

■  Nash  V.  Turner,  1  Esp.  217;  Rees 
V.  Lloyd,  Wight,  123;  Jones  v.  Wil- 
liams, 2  Stark.  52 ;  Bowman  v.  Taylor, 

2  A.  «&  E.  278;  Lainson  v.  Tremere, 

1  A.  «fe  E.  792;  Hill  v.  Water  Works, 

2  B.  &  A.  244;  Parsons  v.  Bank.  10 
Pick.  353;  Wilson  v.  Company.  77  N. 
C.  445;  Goodti^le  v.  Bailey,  Cowp. 
601;  Right  v.  Proctor.  4  Burr.  2208; 
Bonner  v.  Wilkinson,  5  B.  &  A.  683; 


Johnson  v.  Mason.  1  Esp.  89;  Wood 
v.  Day,  7  Taunt.  646;  Friend  v. 
Easterbrook.  2  W.  Bl.  1152;  Rowan- 
tree  V.  Jacob,  2  Taunt.  141;  Harding 
v.  Ambler,  3  M.  &  W.  279;  Doe  v. 
Hares.  4  B.  «&  A.  435;  Doe  v.  Home, 
8  Q.  B.  757;  Fairtille  v.  Gilbert,  2  T. 
R.  171;  Glenow  v.  Geach,  L.  R.  6  Ch. 
147;  Finance  Co.  v.  Society,  27  W.  R. 
210;  Horton  v.  Commissioners,  7 
Exchq.  780;  Shelly  v.  Wright,  Willes, 
9:  Payne  v.  AUerbury,  Hair.  Ch.  414; 
Hurley  V.  Csler,  44  Iowa,  642;  Ridgely 
v.  Bond.  18  Md.  433;  Buchanan  v. 
Kimes,  58  Tenn.  275;  Hosier  v.  Searle, 
2  B.  &  P,  299;  Lampon  v.  Corke,  5  B 
&  A.  600;  Campbell  v.  Knights,  21 
Me.  332;  Baker  v.  Dewey,  1  B.  &  C. 
704;  Stroud  v.  Willis,  Cro.  Eliz.  362; 
Jewel's  Case,  1  Rol.  408;  Holloway's 
Case,  1  Mod.  15;  Fletcher  v.  Farrer, 
Comb.  377;  Campau  v.  Canapau,  37 
Mich.  245;  Norton  v.  Sanders,  7  J.  J. 
Marsh.  12;  Redman  v.  Bellamy,  4 
Cal.  247;  Lajoye  v.  Primar,  3  Mo. 
529.  Penncl  v.  Wyant,  2  Harr.  501; 
Bothell  v.  Somers,  2  Y.  &  J.  412; 
Rutherford  v.  Stamper,  60  Tex.  447; 
Palmer  V.  Ekins,  2  Str.  817;  Thorp's 
Case,  3  Leon.  203;  Brown's  Case,  3 
Co.  138;  Helps  v.  Herreford,  2  B.  & 
A.  242. 


Estoppel  by  Deed.  711 

prove  anything  in  contradiction  to  what   he  has  solemnly  and 
deliberately  avowed  by  deed.' 

§  577.  This  principle  of  estoppel  is  founded  on  the  general 
doctrine  that  a  man  shall  not  defeat  his  own  act  or  deny  its  valid- 
ity to  the  prejudice  of  another.  Ordinarily,  the  name  of  the 
covenantor  or  obligor  appears  in  the  body  of  the  deed  ;  but  there 
is  a  sufficient  designation  and  description  of  the  party  to  be 
charged  if  the  name  is  written  at  the  foot  of  the  instrument." 
A  man  may  bind  himself  by  deed  either  in  his  own  name,  or  by 
some  acquired  or  adopted  name,  title  or  description.  Where, 
therefore,  the  defendant  described  himself  in  a  deed  by  the  name 
of  "  Davis  and  Marsh,"  he  was  held  estopped  from  showing  that 
his  name  was  Davis  only.'  So  if  a  man  executes  a  bond  in  the 
name  of  Thomas,  he  is  estopped  by  the  bond  from  pleading  that 
his  name  is  Joseph.  If  he  is  described  as  James  in  the  body  of 
the  deed,  and  executes  it  in  the  name  of  John,  by  writing  that 
name  against  the  seal,  and  is  sued  in  the  name  of  John,  and 
pleads  the  misnomer,  the  plaintiff  may  rely  on  the  estoppel,  and 
the  deed  is  conclusive  evidence  of  the  adoption  by  the  defendant 
of  the  names  both  of  James  and  John/  So  a  grantor  whose 
signature  has,  at  his  own  request,  been  affixed  to  the  deed  by 
another,  is  bound  thereby,  and  after  delivery  of  the  deed  and 
receipt  of  the  consideration,  is  estopped  to  deny  the  same.  At 
common  law,  signing  is  not  necessary  to  the  due  execution  of  a 
deed,  but  it  is  made  so  by  the  statute  of  frauds.  But  if  the 
grantor's  name  is  written  in  his  presence,  and  by  his  direction,  it 
is  his  act,  and  he  will  not  be  permitted  to  repudiate  a  deed  thus 
executed.^  So  where  a  man  in  his  deed  recites  particular  facts, 
these  facts  become  conclusive  evidence  against  him,  and  he  is 
not  at  liberty  to  deny  the  truth  of  his  statement.  One  who 
makes  a  feoffment  cannot  allege  that  his  feoffee  was  not  seized, 

'  Sharington  v.  Strotton,  1  PloTvd.  v.  Whitebread,  11  C.  B.  400;  Eeeves 

308;  Morley  v.  Boothby,  3  Bing.  Ill;  v.  Slater,  7  B.  &  C.  489;  Williams  v. 

Fallowes    v.    Taylor,    7    T.   R.   477;  Bryant,  5  M.  «fc  W.  454. 
Shubrick  v.  Salmond,  8  Burr.  1639.  '-  Lovejoy  v.    Richardson,    68  Me. 

"  Nurse  v.  Frampton,  1  Ld.  Raym.  38G;  Ins.  Co.  v.  Brown,  30  N.  J.  E. 

28.  193;  Croy  v.  Busenback,  72  Ind.  48; 

3  Elliott  V.  Davis,  2  B.  &  P.  339.  Weaver  v.  Carnall,  35.Ark.  198;  S.  C, 

*  Gould  V.   Barnes,   3  Taunt.    505;  37  Am.  R.  22;  Clough  v.  Clougb,  73 

Lind  V.  Hook,  Mod.  Cas.  225 ;  James  Me.  487;  S.  C,  37  Am.  R.  23. 


712  The  Law   of  Estoppel. 

or  set  up  any  title  acquired  subsequent  to  the  feoflfment.'  Estop- 
pel by  deed  extends  to  persons  claiming  under  the  person  estopped 
in  the  same  manner  as  an  estoppel  by  record  does.  No  person  can 
avoid  his  own  deed  by  which  an  estate  has  passed  on  the  ground 
of  his  own  hand  in  executing  it.  Thus  where  a  party  conveys 
liis  property  to  another  in  fraud  of  his  creditors,  or  collusivclj 
suffers  a  judgment  to  be  rendered  against  him,  and  his  property 
is  sold  and  conveyed  for  the  purpose  of  defeating  the  jnst  claims 
of  his  creditors,  the  grantor  in  such  fraudulent  conveyance  can- 
not recover  in  opposition  to  his  deed  ;  he  is  estopped  by  it  and  by 
his  actions  from  claiming  in  hostility  to  it.  Such  fraudulent  con- 
veyance binds  not  only  the  grantor  but  his  heirs  and  his  personal 
representatives."  So  a  person  named  as  grantor  in  a  deed  may  be 
guilty  of  such  a  degree  of  negligence  in  executing  it,  and  per- 
mitting it  to  be  exposed  where  it  may  readily  be  taken  by  the 
person  named  as  grantee,  as  will  estop  him  from  setting  up  title 
as  against  a  honajide  purchaser  for  value,  under  the  deed.' 

§  578.  Estoppels  by  deed,  as  far  as  they  are  applicable,  or  may 
be  applied  to  deeds  conveying  real  estate,  create  what  in  law  is 
termed  a  title  by  estoppel,  which  is  defined  as  follows  :  A  title  by 
estoppel  is  where  equity,  and  in  some  cases  the  law,  in  order  to 
accomplish  the  purposes  of  justice  which  cannot  otherwise  be 
reached,  draws  certain  conclusions  from  the  acts  of  one  party  in 
favor  of  another,  in  respect  to  the  ownership  of  lands  which  it 
does  not  allow  the  first  to  controvert  or  deny.  Estoppels  differ 
from  evidence  in  this,  that  the  former  are  received  as  conclusive, 
and  preclude  all  inquiry  as  to  the  merits  of  the  title,  Avhile  evi- 
dence is  merely  the  medinm  of  establishing  facts  which  do  exist 
or  have  existed.     As  an  estoppel  against  an  estoppel  sets  the 

*  2Prest.  Abst.  407;  Sinclair  v.  Jack-  v.  Barnett,  31  Miss.  653;  Snodgrass  v. 

son,  8  Cow.  543;   Douglas  v.  Scott,  5  Andrews,    30    Miss.   472;    Crosby  v. 

Ohio,  194.  "  De  Graffeniied,  19  Ga.  290;  Hurley  v. 

-Montgomery  v.   Hunt,  5  Cal.  366;  Osier,  44  Iowa,   042;  Sims  v.   Field, 

George  v.    Williamson,  26  Mo.   190;  66  Mo.  Ill;  Tuffts  v.  Du  Bignon,  61 

Getzler  v.  Saroni,  18  111.  511 ;  Andrew  Ga.  322;  Peterson  v.  Brown,  17  Nev. 

V.   Marshall,    43  Me.    372;    Clute    v.  172;  S.  C. ,  45  Am.  R  437. 
Fitch,  25  Barb.  428;  Huey's  App.,  29         ^  xi^iier  v.  Beckwith,  30   Wis.  55; 

Pa.   St.   219;  Ilubbs  v.   Brockwell,  3  Collins  v.  Heath,  34  Ga.  443;  Jones  v. 

Sneed,  574;  Franklin  v.  Stagg,  22  Mo.  Powles,  3  M.  &  G.  581;  Everts  v.  Ag- 

193;  Gully  v.  Hull,  31  Miss.  20;  Winn  nes,  6  Wis.  453. 


Estoppel  by  Deed.  713 

matter  at  large,  a  warranty  opposed  to  a  warranty  leaves  the  mat- 
ter as  though  none  had  been  made.'  Estoppels  do  not  give  an 
estate,  nor  do  they  divest  another  of  an  estate  or  interest  in  lands  ; 
They  merely  bind  the  interest  by  a  conclusion  which  precludes  the 
parties  between  whom  it  is  made  to  operate  from  asserting  or 
denying  the  state  of  the  title,"  or  in  other  words,  a  title  is  pre- 
sumed rather  than  acquired  by  estoppel,  inasmuch  as  a  person  is 
concluded  by  his  own  act  from  disputing  the  title  of  another.^ 

§  579,  Estoppels  must  be  reciprocal  or  mutual.  One  not 
bound  by  an  estoppel  cannot  take  advantage  of  it."  They  are 
inapplicable  to  infants  or  femes  covert^  except  as  will  be  here- 
after shown,  for  to  be  binding  upon  one  they  must  bind  the  other 
also.  In  treating  of  estoppel  by  deed,  it  must  be  understood 
that  unless  the  deed  was  aided  by  the  estoppel  it  would  be  of  no 
avail,  by  reason  of  the  state  of  facts  being  different  from  what 
they  are  assumed  to  be  by  the  instrument  itself,  and  which  facts 
if  true  would  have  given  the  same  effect  to  the  deed  by  its  own 
intrinsic  virtue  which  it  receives  by  the  aid  of  the  estoppel ;  as, 
for  instance,  if  for  a  valuable  consideration,  A.  makes  a  deed  to 
B.  wherein  he  assumes  to  convey  a  specific  parcel  of  land,  he 
thereby  asserts  that  he  is  the  owner  of  it,  and  that  a  title  of  the 
same  thereby  passes  to  B.  and  yet  if  he  has  no  title,  nothing  in 
fact  passes  by  the  deed.  But  if  he  shall,  soon  after  this,  become 
the  owner  of  this  land,  and  the  purchaser  insists  upon  claiming 
it,  it  would  not  be  open  to  him  to  deny  such  claim,  after  having 
thus  taken  the  grantee's  money,  and  having  solemnly  declared 
that  he  was  and  should  be  the  owner  of  the  land.^  Estoppels  by 
deed  are  applied  in  some  action  or  proceeding  based  on  the  deed, 
in  which  the  fact  in  question  is  recited.  In  a  collateral  action 
there  can  be  no  estoppel,®  nor  will  estoppels  by  deed  avail  in 
favor  of  any  but  the  parties  and  their  privies.' 

1  Brown  v.    Staples,    28    Me.    197;  wood  v.    Planigan,    104    U.    S.    362; 

Kimball    v.    Scboff,   40  N.    H.    197;  Smith  v.  Water  Co.,  35  Conn.   400; 

Bronson  v.  Wirth,  17  Wall.  132.  Dobbins  v.  Cruger,  108  111.  188;  Han- 

"  1  Prest.  Abst.  420;  2  Id.  205.  nab  v.  Collins,  94  Ind.  201;  Karnes  v. 

3  Crabb.  Real  Prop.  1046.  Wingate,  94  lud.  594. 

*  Ra3^  V.    Gardner,   82  N.    C.   146;  «  Carter  v.  Carter,  3  Kay  &  J.  645. 

Schenck  v.  Stumpf,  6  Mo.  App.  381;  "^  Carpenter  v.    Buller,  8  M.  &  W. 

Ante,  §  20.  212;  Cottle  v.    Sydnor,  10  Mo.   763; 

"  Clark  V.  Baker,  U  Cal.  629;  El-  Ante,  §  30. 


714  The  Law  of  Estoppel. 

§  580.  An  estoppel  by  deed  is  a  mode  of  preserving  rather 
than  of  acquiring  property,  inasmnch  as  a  person  is  conchided  by 
his  own  act  from  disputing  the  title  of  another,  Tlie  estoppel 
of  a  deed  will  be  limited  to  actions  based  upon  it  or  growing  out 
of  the  transaction  in  which  it  was  executed,  and  does  not  extend 
to  a  collateral  action  where  the  cause  is  different,  while  the  sub- 
ject matter  may  be  the  same.'  The  law  of  estoppel  is  no  excep- 
tion to  the  general  principle  that  the  operation  of  deeds  is  a 
question  of  intention,  and  will  not  be  carried  further  than  the 
parties  appear  from  the  tenor  of  the  whole  instrument  to  have 
agreed.  "  When  it  can  be  collected  from  the  deed  that  the 
parties  to  it  have  agreed  upon  a  certain  admitted  state  of  facts,  as 
the  basis  on  which  they  contract,  the  statement  of  those  facts, 
though  only  by  way  of  recital,  estops  the  parties  from  proving 
the  contrary.  Therefore,  the  introduction  of  a  statement  into  a 
sealed  instrument  will  not  render  it  conclusive  unless  there  is 
sufficient  reason  for  believing  that  such  was  the  design  or  that 
some  injustice  would  result  from  allowing  it  to  be  contradicted.' 
The  presumption  is  against  rather  than  in  favor  of  the  estoppel, 
and  those  relying  upon  it  must  show  that  it  results  from  the 
language  of  a  particular  clause,  and  is  in  accordance  with  the 
object  and  tenor  of  the  deed  ;  a  vague,  general  or  ambiguous 
statement  not  indicating  that  the  parties  meant  to  tie  themselves 
down  to  a  particular  state  of  facts,  consequently,  will  not,  operate 
as  an  estoppel,  nor  will  an  estoppel  be  raised  by  intendment  or 
implication  from  language  susceptible  of  another  interpretation.^ 

§  581.  In  order  to  give  rise  to  an  estoppel  by  deed,  the  parties 
must  ordinarily  be  sui  Juris,  competent  to  make  it  effectual  as  a 

'  Collins  V.   Tilyou,  26  Conn.  368;  Kas.  322;   Osborn  v.  Endicot,  6  Cal. 

Carpenter  v.  Buller,  8  M.  &  W.  219;  149. 
Meiritield  V.  Parriott,  11  Cush.  590.  =*  gi-jnegar  v.  Chaffln,   3  Dev.  108; 

«  Young  V.  Raincock,  7  C.  B.  310;  Campbell  v.  Knight,  24  Me.  332;  Mc- 
Kay V.  Askew,  5  Jones  L.  63;  Ry.  Comb  v.  Gilkey,  29  Miss.  146;  Dechert 
Co.  V.  Warton,  6  Hurl.  &  N.  520;  v.  Blauton,  3  Snee<i,  373;  Dempsee  v. 
Bovver  v.  McCormick,  23  Gratt.  310;  Tylee,  3  Duer,  73;  Pelletrau  v.  Jack- 
Fraser  v.  Pendleton,  31  L.  J.  C.  son,  11  Wend.  110;  Right  v.  Buckneii, 
P.  31;  Sironghill  v.  Buck,  14  Q.  B.  3  B.  &  Ad.  278;  Hays  v.  Askew,  5 
TBI;  R.  R.  Co.    v.    Starkweather,  21  Jones  L.  63 


Estoppel  by  Deed.  715 

contract,  and  the  instrainent  so  executed  as  to  be  binding  in  law.' 
The  deed  of  a  married  woman  will  not  operate  as  an  estoppel 
where  it  fails  as  a  grant,  or  estop  her  from  setting  up  an  estate 
obtained  subsequently  or  by  purchase,  against  the  grantee.^  This, 
like  the  grant,  is  limited  to  the  estate  the  wife  has  at  the  time, 
and  does  not  extend  to  an  interest  acquired  after  the  execution  of 
the  deed,  for  she  can  not  bind  herself  subsequently  by  any 
covenant.  Where  the  deed  of  a  married  woman  fails  as  a  con- 
veyance from  the  non-concurrence  of  her  husband,  it  is  ineffectual 
for  a-U  purposes,  and  can  not  be  relied  upon  as  an  estoppel  or 
ground  of  recovery  in  a  subsequent  controversy/  By  the  com- 
mon law  the  warranty  deed  of  a  married  woman,  though  executed 
in  such  a  form  as  to  convey  her  title,  did  not  operate  against  her 
by  way  of  covenant  or  estoppel,  because  she  was  incapable  of 
binding  herself  by  covenants  of  warranty  or  by  agreement  to 
convey  her  real  estate.*  But  these  i-estrictions  are  substantially 
abolished  by  statute  in  many  States.  Thus,  under  a  mortgage  deed 
given  by  a  married  woman  with  her  husband's  consent,  as 
required  by  the  statute,  with  full  covenants  of  warranty,  a  title 
afterwards  acquired  by  her  inures  by  way  of  estoppel  to  the 
grantee,  not  only  against  the  grantor  but  also  against  one  holding 
by  descent  or  grant  from  her  after  acquiring  the  new  title.* 

§  582.  By  statute  in  New  York,  she  may  bind  herself  by 
covenants  in  a  deed  made  jointly  with  her  husband.  But  not  as 
to  any  title  subsequently  acquired.'     While  a  wife  is  competent 

'  Sinclair  v.    Jackson,  8  Cow.  543;  7  Mass.  14;  Colcord  v.  Swan,  7  Mass. 

Wallace  v.   Miner,  6  Qhio,  366;  Bank  291;  Barbet  v.  Rath,  16  La.  Ann.  371; 

V.  Banks,  101  U.  S.  240.  Fletcher  v.    Coleman,    2  Head,    384; 

2  Wadleigh  v.   Glines,  6  N.  H.  17.  Massie  v.  Sebastian,  4  Bibb,  433;  Fogg 

^Lowell  V.  Daniels,  2  Gray,    188;  v.  Yeatman,  6  La.575;  -Jones  v. Reese, 

Merriam  v.  Boston,  117  Mass.  241.  65  Ala.    134;    Griffith  v.  Sheffield,  38 

*  Wright  V.  Shaw,  5  Cush.  66;  Low-  Miss.    359;    Blair  v.  Harrison,  11  111. 

ell  V.  Daniels,  2  Gray,  161.  384. 

^  Somes  V.    Skinner,    3    Pick.    52;         *  Jackson     v.    Vanderheyden,      17 

Russ    V.    Alpaugh,    118   Mass.    369;  Johns.  167;  Wright  v.  Shaw,  5 Cush. 

Knight    V.    Thayer,    125    Mass.    25;  56;  Den   v.   Demarest,   1    N.  J.  541; 

Chapman  v.    Miller,   130  Mass.  289;  Grout    v.    Townsend,    2    Hill,    557; 

Hill   V.    West,   8   Ohio,  222;  ]Sra.sh  v.  Pentz  v.  Simonson.,  13  N.  J.  239;  Col- 

SpoJBford,   10  Mel.  .192;    Welborn  v.  cord  v.  Swan,  7  Mass.    291;  Straun  v. 

Finley,  7  Jones,  228;    Doane  v.  Wil-  Straun,   50  111.23;  Sparrow  v.  King- 

cutt,  5  Gray,  338;  Fowler  v.  Shearer,  man,  1  N.  Y.  243. 


716  The  Law  of  Estoppel. 

to  join  witli  her  husband  in  executing  a  conveyance  of  her  land, 
her  covenants  of  warranty  and  of  title  are  not  binding  on  her. 
Her  conveyance  operates  as  an  estoppel  as  to  the  title  thereby 
granted.'  The  recitals  contained  in  a  deed  of  a  married  woman 
are  limited  to  the  estate  which  she  has  at  the  time,  and  do  not 
estop  her  from  showing  that  they  are  false,  because,  while  she  has 
the  capacity  to  convey,  she  has  not  to  contraet.'  A  married 
woman  cannot  bind  herself  by  covenant  during  coverture,  nor  is 
she  estopped  by  her  covenant  from  setting  up  an  after  acquired 
interest  in  lands  conveyed  jointly  with  her  husband."  To  hold 
her  estopped  from  asserting  her  title,  would  be  equivalent  to 
holding  her  bound  by  the  covenant.*  Nor  is  a  married  woman 
estopped  by  her  representations  that  she  is  a  feme  sole!'  But  it 
has  been  held  that  estoppels  by  warrant}'  ''^Pplj  to  cases  of  con- 
veyances of  their  lands  by  married  women  joining  with  their 
husbands.  For,  though  in  such  cases  the  wife  is  not  personally 
liable  upon  her  covenant,  she  and  those  claiming  under  her  are 
estopped,  in  the  same  manner  as  if  she  were  difeme  sole^  against 
setting  up  an  after  acquired  title  to  the  land  conveyed.'  In  the 
case  of  Jackson  v.  Yanderheyden,  the  court  say,  that  though  a 
deed  with  covenants  of  warranty  by  husband  and  wife  of  the 
wife's  land  would  convey  her  real  estate,  or  any  existing  or  con- 
tingent future  interest  in  it,  "  such  deed  cannot  operate  as  an 
estoppel  to  her  subsequently  acquired  interest  in  the  same  land." 
It  is  well  settled  that  a  married  woman  would  not,  at  common 
law,  be  personally  liable  upon  covenants  contained  in  the  deed  of 
herself  and  husband.  It  has  been  held  that  a  married  woman's 
lands  held  under  the  statute  to  her  sole  and  separate  use,  were 

>  Schafner  v.  Gnidmaker,  6  Iowa,  57  Pa.  St.  426. 
137;    Gilliland    v.    Swift,    21   N.    Y.  °  Conner  v.    Martin,    1    Stra.   516; 

Super.  Ct.  574.  Legg  v.  Legg,  5  Mass.  99. 

^Griffin  v.   Sheffield,  38  Miss.  359;         «  Hill  v.  West,  8  Ohio,  222;  Colcord 

Dcmpsey  V.  Tylee,  3  Duer,  73;  Bank  v.  Swan,  7  Mass.  291;  Nash   v.  Spot- 

V.  Banks.  101  U.    S.   240;    Paknerv.  ford,  10  Met.  192;  Fowler  v.  Shearer, 

Cross,  9  Miss.  46.  7  ]\Iass.  14;    Stow  v.    Wyse,  7  Conn. 

3  .Jackson    v.     Vanderheyden,      7  24;  McDonald   v.    King,   1   N.  J.  L. 

John.  167;  GrfRn  v.  ShetHeld,  38  Miss.  432;  Simson  v.  Eckstein,  22  Cal.  580; 

359;  Wadleigh  v.  Glines,  6   N.  H.  17.  Larco    v.    Cassaneva,    30    Cal.    560; 

*  Canan  v.  Farmer,  3  Ex.  Rep.  698;  Sliawhan  v.  Long,  26  Iowa,  488;  Rice 

Straun  V.  Straun,  50  111.  37;  Wales  v.  v.  R.   R.,  12  Allen,  141;  Douglass  v. 

Coffin,  13  Allen,  216;  Dean  v.  Shelly,  Cruger,  80  K  Y.  15. 


Estoppel  by  Deed.  717 

bound  by  her  covenauts,  as  if  she  were  at  the  time  sole  and 
unmarried,'  In  Oregon  the  courts  hold  that  estoppels  in  deeds 
without  warranty  apply  to  married  women." 

§  583,  In  New  York  the  court  held  that  as  a  conveyance  by 
a  married  woman,  her  husband  reciting  that  the  land  was  hers, 
did  not  estop  her,  and  could  not  be  binding  upon  the  other  par- 
ties, and  left  both  her  husband  and  grantee  free  to  allege  that  the 
land  in  point  of  fact  belonged  to  her  husband,'  So  a  widow  may 
show  that  land  assumed  to  be  conveyed  by  her  husband  by  a  deed 
in  his  lifetime  did  not  belong  to  him  ;  the  same  ground  may  be 
taken  by  the  grantee  in  a  suit  brought  by  her  for  dower,*  And 
in  Missouri  it  has  been  held  that  the  recitals  in  a  deed  by  which 
a  married  woman  purports  to  convey  her  title  to  land  do  not 
estop  her  nor  those  claiming  under  her  from  asserting  the  truth 
against  the  recitals.*  In  England  the  rule  is  that  she  is  estopped 
by  the  recitals  in  her  deed."  In  Pennsylvania  the  contract  of  a 
married  woman  being  void  it  cannot  be  ratified  unless  by  deed  in 
the  statutory  mode.  Positive  acts  of  encouragement  which  might 
operate  to  estop  one  sui  juris  will  not  affect  one  under  legal 
disability.  A  married  woman,  by  agreement  signed  only  by  her- 
self and  without  an  acknowledgment,  contracted  to  sell  land,  she 
received  one  year's  interest  and  part  of  the  purchase  money.  The 
purchaser  took  possession  and  made  improvements  with  her 
knowledge  and  encouragement.  The  court  held  that  neither  the 
principle  of  estoppel  nor  compensation  would  prevent  her  from 
recovering  the  land,^ 

§  584.  In  regard  to  infants  it  is  the  universal  rule  that  estop- 
pels do  not  appl}''  to  or  affect  them,*  with  but  this  one  exception. 
The  fraudulent  acts,  concealments  or  representations  of   infants, 

>  Bassforcl  v.  Pearson,  7  Allen,  504.      S.)  118;  Fiddey,  in  re,  L.  R.  7  Ch. 

2  Graham  V.  Meek,  1   Oregon,    325;      App.  773. 

Richmond  v.   Tibbies,  26  Iowa,  474;  ■>  Glidden  v.    Struppler,  52  Pa.  St. 

Massiev.  Sebastian,  4  Bibb,  433.  400;  Coal  Co.  v.  Pasco.,  79  111.  164; 

3  Dempsey  v.  Tylee,  3  Duer,  73.  Rogers  v.  Brooks,  30  Ark.  612;  Wood 

4  Gaunt  V.  Wainman,  3  Bing.  N.  v.  Terry,  30  Ark.  385. 

C.    69;  Gardner  v.    Greene,   5  R.  I.  «  Cook  v.    Toombs,  36  Miss.   685; 

104.  Houston  v.  Turk,  7  Yerg.  913;    Wat- 

6  Hempstead    v.    Easton,    39    Mo.  son  v.  Billings,  38  Ark.  278;  S.  C,  42 

142.  Am.  R.  1. 

*  Skottowe  V.  Williams,  7  Jur.  (N. 


718  The  Law  of  Estoppel. 

■when  made  or  done  with  a  view  to  deceive  or  defraud  others,  will 
be  as  binding  upon  thcni  as  upon  an  adult  and  their  contracts  will 
be  enforced  against  them.*  Where  the  defendant  in  an  action 
for  breach  of  covenants  in  a  warranty  deed  to  a  married  woman 
admits  the  execution  of  the  deed  but  does  not  allege  fraud, 
accident  or  mistake,  he  is  estopped  from  claiming  that  the  cove- 
nants do  not  run  to  the  grantee  or  that  her  husband  is  the  real 
paHy  in  interest,*  nor  is  Vifeme  covert  estopped  by  joining  in  a 
deed  of  her  husband's  land  containing  covenants  of  warranty 
from  setting  up  a  title  subsequently  acquired  with  her  own 
means  independent  of  her  husband/  A  warranty  deed  by  the 
husband  does  not  estop  the  wife  from  enforcing  a  prior  mortgage 
held  by  her  as  her  separate  property  against  the  husband's  grantee 
and  thoae  holding  under  him/  In  Illinois  the  courts  hold  that  a 
married  woman  may  be  estopped  to  claim  homestead  where  she 
and  her  liusband  join  in  a  deed  of  the  premises  and  then  abandon 
them/  "When  a  conveyance  by  a  husband  and  wife  of  the  wife's 
land  is  void  for  the  want  of  proper  acknowledgment  as,  to  her, 
the  children  will  not  be  estopped  by  the  warranty  of  the  husband/ 
Where  a  patent  issued  to  a  husband  and  wife,  and  both  joined  in 
a  conveyance  thereof,  but  the  deed  was  so  defectively  executed 
by  the  wife  as  not  to  pass  her  title,  and  the  husband  survived  the 
wife,  her  title  vested  in  him  and  enured  to  the  benefit  of  the 
grantee  who  took  the  deed  honafide  without  notice  of  any  fraud 
on  the  rights  of  the  wife/ 

§  585.  A  grantor  is  estopped   by  his  deed   to  say  that  he  had 
no  interest  in  the  land.*  So  he  cannot  object  that  it  is  inoperative 

'  Kilgore  v.   Jordan,    17  Tex.  341;  25  Iowa,  107;  Williams  v.  Baker,   71 

Overton  v.   Bannister,    3  Hare,  503;  Pa.  St.  483;  Burns  v.  McGraw,  3    P. 

Adams'  Equity,    176;  Watts  v.  Cres-  N.  B.  186. 

well,  9  Yiner,  415;  Conyert  v.  Gert-  ^  Bartlett  v.  Boyd,  34  Vt.  35G. 

Chen,  SMaddox,  40;  Gillespie   v.  Na-  ^  Brown  v.  Coon,  36  111.  243. 

bors,  59  Ala.  441 ;  Houston  v.  Turk,  7  «  Cliauvin  v.  Wagner,  18  Mo.  531 ; 

Yerg.  13.  Small   v.  Pioctor,  15  Mass.  495;  Crit- 

2  Gray  v.   Stockton,  8   Minn.    529  tenden  v.  Woodruff,  11  Ark.  82;  Spar- 

^Cbildsv.  McCbesney.  20  Iowa, 431;  row  v.  Kingman,  1  N.  Y.  242;  Moore 

Nunally  v.  White,  3  Met.  (Ky.)  584;  v.  Gonow,  3  A.  K.  Marsh.  41. 

Baxter  v.  Bodkin,  25   Ind.    172;  Wil-  '  Patrick  v.   Chenault,   6  B.  Mon. 

son  V.   Kirby,  23  N.  J.  K  150;  King  315. 

v.  Rea,  56  Ind.  1 ;  Nicholson  v.  Caress,  »  Fairtitle  v.  Gilbert,    2  T.  B.  171; 

45  Ind.  479;  O'Neil'v.  Vandeuburgh,  Caffrey   v.    Dudgeon,    38    Ind.    512; 


Estoppel  by  Deed.  719 

bj  reason  of  informality  of  execution.  To  have  this  effect  the 
one  who  is  estopped  must  have  joined  in  the  deed  as  a  grantor 
therein  and  must  have  been  capable  of  making  a  valid  deed. 
Thus  wliere  a  liusband  made  a  deed  with  covenants  of  warranty 
of  his  wife's  estate  in  which  she  joined  by  a  clause  relinquishing 
her  riglit  of  dower  but  not  by  words  of  grant,  it  was  held  that 
neither  slie  nor  her  heirs  were  estopped  thereby  to  claim  the  land 
even  at  the  end  of  twenty-nine  years  after  making  the  deed.* 
And  where  a  deed  was  made  to  a  femfie  covert  who  at  the  same 
time  made  a  mortgage  to  secure  a  part  of  the  ^Durchase  money  it 
was  held  to  be  a  void  deed  of  mortgage  since  a.  feme  covert  could 
not  make  a  deed.^  In  this  respect  the  estoppel  is  not  reciprocal, 
for  a  grantee  who  holds  an  executed  title  under  a  deed  may 
deny  his  grantor's  title  in  the  same  manner  as  he  could  that  of  a 
stranger.' 

§  586.  Estoppels  must  be  mutual ;  they  are  limited  to  parties 
and  privies,  and  cannot  be  enforced  by  or  against  strangers.* 
When,  however,  the  estoppel  takes  effect  upon  and  passes  an 
after-acquired  title,  third  persons  are  as  much  estopped  from 
questioning  its  operation  as  the  parties,  while  they  may  still  be 
at  lil^erty  to  show  that  the  title  is  not  valid  or  did  not  come 
within  the  reach  of  the  estoppel.  A  purchaser  at  a  judicial  sale 
is,  in  general,  bound  b}^  and  entitled  to  take  advantage  of  every 
estoppel  that  could  have  been  enforced  by  or  against  the  party 

Meniam  v.  Boston,  117  Mass.  247;  Craiy,  5  Wall.  795;  Williams  v.  Chan- 
Doe  V.  Ford,  3  A.  &  E.  649;  Rulber-  filer,  25  Tex.  40;  Nutwell  v.  Tongue, 
ford  V.  Stamper,  60  Tex.  447.  22  Md.  499;  Braiutree  v.  Higham.  17 
'  Raj-mond  v.  Holden,  2  Cusli.  264;  Mass.  432;  Worcester  v.  Green,  2  Pick. 
McMoriis  v.  Webb,  17  S.  C.  558.  425;  Conger  v.  Feltou,  1  Rawle,  141; 

2  Bank  V.  Bell,  10  Cush.  264.  Griggs  v.  Smith,  12  N.  J.  L.  22;  Miles 

3  Winlock  V.  Hardy,  4  Lit.  272;  v.  Miles,  8  W.  &  S.  135;  Langston  v. 
Moore  v.  Farrow,  3  A.  K.  Marsh.  41;  McKinne,  2  Murph.  07;  Doe  v.  Erring- 
Lewis  V.  Baird,  8  McLean,  79;  Small  ton,  8  Scott,  210;  Waters'  App.,  35  Pa. 
V.  Proctor,  15  Mass.  295;  Crittenden  St.  523;  Allen  v.  Allen,  45  Pa.  St. 
V.  Woodruff,  11  Ark.  82;  Sparrow  v.  573;  Sunderlin  v.  Struthers,  47  Pa.  St. 
Kingman,  1  N.  Y.  242;  Gardner  v.  411;  Catterlin  v.  Hardy,  10  Ala.  511; 
Greene,  5  R.  I.  104;  Great  Falls  Co.  Carver  v.  Jackson,  4  Pet.  1;  Penrose 
V.  Worcester,  15  N.  H.  414.  v.  Griffiths,  4  Binn.  231 ;  Sheddeu  v. 

4Longwellv.  Bentley,  3Grant,  177;  Wurtz,    30  N.    H.    104;    Bullum  v. 

Shuraanv.  Garratt,  16  Cal.  100;  Boll-  Hutchinson,    1   Allen,    58;   Chope  v. 

ing  V.  Mayor,  3  Rand.  536;  Griffin  v.  Loman,    20   Mich.    327;    Simpson  v. 

Richardson,  11  Ired.  L.  439;  Deery  v.  Pearson,  31  Ind.  1;  Ante,  §  30. 


•720  The  Law  of  Estoppel. 

whose  property  is  sold,  and  this  is  equally  applicable  to  the 
creditor  under  whose  judgment  or  execution  the  sale  is  made.' 
Estoppels  operate  neither  in  favor  of  nor  against  strangers,  but 
affect  only  parties  and  privies.  Privies  in  blood,  in  estate  and  in 
law.  Privies,  or  those  who  derive  title  from  or  through  the 
parties,  ordinarily  stand  in  the  same  position  as  the  parties,  and 
are  bound  by  every  estoppel  that  would  have  been  binding  on  the 
parties.  A  stranger  can  neither  take  advantage  of  nor  be  bound 
by  an  estoppel.'  Still  it  is  sometimes  difficult  to  make  the 
distinction  between  privies  and  strangers.  Thus,  where  one  who 
had  been  disseised,  conveyed  the  land  by  deed  to  a  stranger,  and 
then  sued  his  disseisor  for  possession,  it  was  held,  that  his  deed 
to  a  stranger  did  not  estop  him  from  maintaining  the  action.'  So 
where  the  deed  to  the  stranger  passed  nothing  for  the  want  of 
proper  execution,  the  tenant,  not  a  party  to  it,  cannot  avail  him- 
self of  it."  But  a  person  in  possession,  sustaining  his  possession 
by  no  other  title  than  a  denial  that  a  former  owner  had  parted 
with  his  right,  is  not  a  stranger.  He  becomes  privy  in  estate  to 
him  whose  title  he  maintains,  and  is  estopped  by  what  destroys 
that  in  his  hands.  For  if  title  can  be  traced  by  B.  to  A.,  and  B. 
can  fasten  upon  A.  the  incapacity  of  asserting  his  right  in  conse- 
quence of  his  admission  that  he  has  conveyed  to  B.,  it  is  not  just 
that  one  standing  on  A.'s  claim  only  and  relying  on  no  superior 
right,  should  be  permitted  to  contest  the  existence  of  a  fact  which 
those  interested  have  settled.* 

§  58T.   Any  person  claiming  under  one  who  is  bound  by  an 
estoppel,  is  himself  bound  by  the  same  estoppel."     Thus,  a  pur- 

*  Henderson  v.  Norcross,  19  N.  J.  v.  Miles,  8  W.  &   S.  135;  Deery  v. 

E.  417;  O'Neal  V.  Duncan,  4  McCord,  Crary,    5    Wall.    795:    Kitzmiller    v. 

246;  Waters'  Appeal,  35  Pa.  St.  523;  Rensselaer,  10  Ohio  St.  63;  Williams 

Richards  v.  Johnson,  4  Hurls.  &  N.  v.    Chandler,   25   Tex.  40;   Griggs  v. 

660.  Smith,  12  N.  J.  22. 

2  Doe  V.  Errington,  6  Bing.  (N.  C.)  ^  Wolcot   v.    Knight,  6   Mass.   418; 

79;    Jackson   v.    Bull,    1   Johns.    81;  Jackson  v.  Brinkerhofl",  3  Johns.  101. 

Jackson  v.  Brinkerhoff,  3  Johns.  101;  *  Patterson  v.  Pease,  5  Ohio,  190. 

Miller  V.  Holman,   1   Gram  Cas.  243;  '  Kinsman  v.  Loomis,  11  Ohio,  478; 

Jackson  v.    Bradford,  4  Wend.  419;  Easter  v.  R.  R.,  14  Ohio  St.  52;  Moore 

Kimbail   v.    Blaisdell,   5   N.  H.   533;  v.  Aldrich,  19  Pick.  449;  Whatman  v. 

Sunderlin  v.  Strulhers,  47  Pa.  St.  423;  Gibson,  9  Sim.  196. 

Massure  v.  Noble,  11  111.531;  Lang-  'Phelps    v.    Blount,    2  Dev.    177; 

Btou  v.  McKiuney,  2  Murph.  67;  Miles  Douglass  v.  Scott,  5  Ohio,  194;  Wark 


Estoppel  by  Deed. 


721 


chaser  from  one  who  had  made  a  prior  deed  with  warranty,  was 
estopped  by  the  first  deed  as  well  as  his  grantor,  although  it  had 
never  been  recorded,  provided  he  had  notice  of  its  existence 
when  he  took  liis  deed.  So,  an  administrator  is  estopped  from 
attacking  the  deed  of  his  intestate  as  completely  as  the  latter 
would  have  been  estopped.'  Where  A.,  by  a  deed  of  moi'tgage 
with  warranty,  conveyed  his  estate,  upon  which  there  was  an  out- 
standing mortgage,  and  A.  purchased  this  and  took  an  assign- 
ment of  it  to  himself  in  his  own  right,  it  was  held  that  this  latter 
mortgage  enured  to  the  benefit  of  A.'s  mortgagee  with  cove- 
nants.' But  if,  after  having  made  a  conveyance  with  warranty 
without  having  title,  the  estate  comes  to  him  as  a  mere  conduit 
in  passing  it  from  its  owner  through  him  to  another  person,  it 
does  not  inure  to  the  benefit  of  his  original  grantee."  There  is 
a  distinction  between  an  estoppel  in  evidence  and  in  point  of 
estate.  Thus,  a  deed  poll  cannot  create  an  estoppel  in  point  of 
estate.  But  if  such  deed  recites  that  A.  by  bond  did  a  particu- 
lar act,  the  maker  of  the  deed  cannot  deny  that  there  was  no  such 
bond.'  A  deed  or  bond  procured  by  fraud  will  not  operate  as  an 
estoppel  upon  the  party  defrauded  ;  relief  may  be  granted  under 
the  circumstances,  at  law,  not  only  when  the  fraud  enters  into  it 
and  vitiates  the  execution  of  the  instrument,  but  when  it  consists 
in  a  uiisrepresentation  of  the  nature  and  value  of  the  considera- 
tion."    But  one  of  the  parties  to  a  sealed    instrument    cannot 


V.  Willard,  13  N.  H.  .^89;  Mnple  v. 
Kussart,  53  Pa.  St.  348;  Bank  v. 
Housemiui,  6  Paige,  526;  Smith  v 
Prince,  14  Conn.  472;  Osgood  v.  Ab- 
bott, 58]Me.  73;  Taylor  v.   Needbam, 

2  Tiiiint.  279;  Trevivan  v.  Laurnnce, 
1  Salk.  276:  Bates  v.  Norcross,  17  Pick. 
14;  Waters'  Appeal,  35  Pa.  St.  523; 
Doe  V.  Stone,  3  C.  B.  176;  Adams  v. 
Cuddy,  13  Pick.  460;  Doe  v.  Dovvdall, 

3  Houst.  369;  Taylor  v.  King,  -6 
:siunfd.  358;  Jackson  v.  Holland,  14 
Fla.  384;  Conover  v.  Porter,  14  Ohio 
St.  450;  Cuttle  V.  Brockway,  32  Pa.  St. 
45;  Coe  v.  Talcott,  5  Conn.  88;  .Jack- 
son v.  Stevens,  13  Johns.  316;  White 
V.  Patten,  24  Pick.  324;  Lowry  v. 
Williams,   13   Me.    881;    Kimball    v. 

Vol.  I.— 46 


Blaisdell,  5  N.  H.  333;  McKcndrie  v. 
Lexington,  4  Dana,  129;  Fairbanks  v. 
Williamson,  7  Me.  96;  Trull  v.  East- 
man. 3  Met.  121;  Bennett  v.  Walker, 
23  111.  97;  Van  Rensselaer  v.  Kearney, 
11  How.  297;  Colborn  v.  Broughton, 
9  Aln.  357;  Emmert  v.  Hays,  89  111. 
11;  Scoffins  V.  Grandstaff,  12  Kas. 
467. 

'  Hall  V.  Armor,  68  Ga.  449. 

^  Kelly  V.  Jenness,  50  Me.  455. 

^  Kelly  V.  Jenness,  Sup. ;  Runlet  v. 
Otis,  2  N.  H.  167;  Marsh  v.  Rice,  1 
N.  H.  167. 

•»  Shep.  Touch.  53. 

5  Hazard  v.  Irwin,  18  Pick.  95; 
Phillips  V.  Potter,  7  R.  I.  289;  Hart  v. 
Holcomb,   23  N.    H.   535;    Chew    v. 


722  The  Law  of  Estoppel, 

resist  a  recovery  upon  it  by  alleging  that  it  was  concocted  by 
both  in  fraud  of  a  third  person.' 

§  588.  Where  the  truth  appears  upon  the  face  of  an  instru- 
ment, there  can  be  no  estoppel.''  In  Pargetter  v.  Han-Is,  the 
court  said  :  '•  Thb  lessor  was  not  estopped  from  denying  that  no 
estate  had  passed,  by  an  assignment  of  the  reversion  on  which  a 
recovery  could  be  had  by  the  assignee,  because  the  lease  dis- 
closed that  a  mortgage  had  been  given  of  the  premises  under 
which  the  Iciial  title  had  vested  in  the  morto:aoree.''  Where  there 
is  an  admission  that  the  grantor  has  no  title  at  the  time  of  the 
grant,  he  is  liberated  from  any  estoppel  that  may  arise  :  if  there 
is  a  warranty  in  the  deed,  and  he  is  enabled  to  rely  on  an  out 
standing  title  in  a  third  person  as  an  answer  to  an  action  brought 
by  the  grantee.'  There  are,  of  course,  exceptions  to  this  rule, 
as  there  is  to  every  rule  of  law,  no  matter  how  well  settled  or 
how  long  it  has  been  established.  It  must  appear  to  qvqv^  one 
that  when  that  which  is  expressly  or  impliedly  alleged  in  one 
part  of  an  instrument,  is  elsewhere  as  unqualifiedly  denied,  both 
statements  must  be  disregarded  and  the  parties  permitted  to  show 
how  the  matter  really  is  or  stands.^  This  state  of  facts  or  cir- 
cumstances creates  what  is  termed  or  known  as  an  estoppel  against 
an  estoppel,  and  sets  the  matter  at  lai'ge."  Thus,  a  wan-anty 
opposed  to  a  warranty  sets  the  matter  at  large  and  there  is  no 
estoppel.  But  when,  from  the  terms  of  a  eontract,  or  the  cir- 
cumstances under  which  it  is  made,  it  appears  unequivocally  that 
an  allegation  or  recital  was  meant  to  control  or  qualify  the  other 
and  take  effect  as  if  the  other  had  not  been  inserted,  no  such 
case  arises. 

^  589.  While  the  acceptance  of  a  deed,  or  tjie  benefit  which 

Moffatt,   6  Munf.  120;  Tomlinson  v.  Wheelock  v.  Henshaw,  19  Pick.  341; 

Mason,   6   Rand.    169;  Great  house  v.  Coke  Litt.  352;  Cutbbert^sou  v.  Irving, 

Duntap,  3McL.  303;  Lcanard  v.  Bates,  4  H.  &  N.  742;   Pelletrau  v.  .Jackson, 

1  Blfd.  170.  11  Wend.  110;  Jackson  v.  Sinclair,  8 

»  Mayliee  v.   SnitTen,  16  N.  Y.  560;  Cow.  543. 

Hurley  v.  Osier,  44  lown,  642;  Fred-  »  Wheelock  v.  Henshaw,  19   Pick, 

ericks   v.   Davis,  3  Mont.  351;  Tuffts  341. 

V.   Du   Biguon,  61   Ga.   322;  Gass  v.  <  Sinclair  v.  Jackson,  8  Covven,  543. 

Ha'-;iptc)n,    16   Nev.    185;  Knaggs   v.  '  Carpenter  v.  Tliompson,  3  N.  H. 

Mastin,  9  Kas.  532.  204;   Coke  Litt.  353,  b.  1;  Com.  Dig. 

*  Pargetter  v.  Harris,  7  Q.  B.  708;  Est. 


Estoppel  by  Deed.  723 

it  confers,  may  make  it  moi"e  or  less  persuasive  evidence  against 
a  grantee,  by  whom  it  was  not  sealed  ;  it  cannot  be  made  his 
deed,  or  estop  him  from  showing  that  nothing  passed  by  its  oper- 
ation from  the  grantor,  and  when  the  deed  is  sealed  by  the 
grantor  alone,  the  grantee  may  question  his  title.'  A  deed  poll 
estops  the  grantor,  but  not  the  grantee,  and  the  question  as  to 
whether  both  are  to  be  estopped  by  a  deed,  or  only  one,  must  be 
ascertained  from  the  whole  deed.  There  is  no  principle  of  law 
which  prevents  a  man  from  binding  himself  while  leaving  others 
free.  A  conveyance,  by  bargain  and  sale,  or  lease  and  release, 
without  warranty  or  covenants  for  title,  does  not  ordinarily  estop 
the  grantor,  but  this  arises  from  the  generality  of  the  words 
employed,  and  is  equally  applicable  and  true,  whether  the  grant 
be  by  deed  poll  or  by  an  indenture,  executed  by  the  grantee. 
Therefore,  when  both  parties  put  their  seals  to  the  deed,  it  may 
still  be  a  q'.estion  whether  the  words  of  a  covenant  or  recital,  by 
which  one  of  them  is  alleged  to  be  estopped,  are  his,  or  should  be 
regarded  as  proceeding  solely  from  the  other.^  A  deed  executed 
by  one  party  only,  but  containing  an  express  covenant  on  the  part 
of  the  other  to  perform  certain  acts,  binds  the  latter,  if  he  accepts 
the  deed  and  takes  possession  under  it,  as  effectually  as  if  he  had 
signed  it,  although  it  may  be  otherwise  with  a  naked  condition 
unaccompanied  by  any  covenant  on  the  part  of  the  grantee.' 
Thus,  where  land  is  conveyed  by  deed  poll,  with  a  reservation 
that  the  grantee  shall  maintain  suital)le  fences  upon  the  lines  of 
the  premises,  and  the  grantee  accepts  the  deed,  he  is  bound  to 
perform  the  serviced  A  covenant  entered  into  between  owners 
of  adjoining  city  lots,  for  themselves  and  all  claiming  under 
them,  to  the  effect  that  all  buildings  erected  on  such  lots  shall  be 
set  back  a  specified  distance  from  the  line  of  the  street  on  which 
the  lots  front,  is  a  covenant  which   equity  will   enforce   between 

'  Sparrow  v.   Kinsman,    1    N.    Y.  Felton,  1   Rawle,    141;  Worcester  v. 

242;  Blanchard  v.  Ellis,  1  Gray,  195;  Green,    2    Pick.    423;     Williams    v. 

Massure  V.  Noble,  11  111.  531;  Long-  Chandler,  25  Tex.  4;  Boiling  v.  Mayor, 

well   V.    Bentley,    3   Grant   Cas.   177;  3  Rand.  5')3. 

Miles  V.  Miles,  8  W.  &  S.  135;  Griffin  ^  Sironghill  v.  Buck,  14  Q.  B.  781. 

V.  Richardson,  11  Ired.  437;  Langstou  ^  Spaulding  v.  Hallenbeck,  35  N.  Y. 

V.  McKinne,  2  Murph.  67;  Schuirman  204. 

V.    Garratt,   16  Cal.    100;  Langer    v.  ■»  Harriman  v.  Park,  55  N.  H.  471. 


724 


The  Law  of  Estoppel. 


the  parties  to  it,  in  favor  of  one  against  the  other,  or  in  favor  of 
and  against  any  subsequent  grantee  of  either  lot.* 

§  590.  Acceptance  of  an  indenture  binds  the  grantee  without 
execution."  A  covenant  or  stipulation  inserted  in  a  deed  poll 
binds  the  grantee,  his  heirs  and  assigns,  where  such  stipularion 
directly  relates  to  the  premises  conveyed,  or  the  adjoining  prem- 
ises, as  a  fence,  easement,  (fee.  A  deed  poll  may  run  in  tlie  third 
person  as  well  as  in  the  first,  and  an  indenture  in  the  first  as  well 
as  in  the  third.  The  only  real  difl:erence  in  form  is,  that  an  inden- 
ture purports  to  l)c  tiic  deed  of  both  or  all  parties  to  it,  and  a 
deed  poll  the  deed  of  the  grantor  only.  So  of  old  an  indenture 
was  wi'itten  in   counterparts,  one  for  each   party,  all  correspond- 


>  Roberts  v.  LevJ^  3  Abb.  Pr.  N.  &. 
311. 

"  Finley  v.  Simpson,  22  N.  J.  L. 
311:  Vila.sv.  Dickenson.  13  Wi.s.  488; 
Bronson  v.  Coffin,  108  Muss.  175; 
Blair  v.  Taylor,  19  Abb.  Pr.  228; 
Bishop  V.  Dou-las,  25  Wis.  G96;  jMc- 
Clellan  v.  Sanford,  26  Wis.  595; 
Hazlett  V.  Sinclair.  76  Tnd.  488;  Green 
V.  Iloran,  1  Salk.  197;  Halscy  v.  Reed, 

9  Paige,  440;  Lowber  v.  Connit,  36 
Wis.  176;  Hutchinson  v.  R.  R.,  37 
Wis.  G01 ;  Easter  v.  R.  R..  14  Ohio  St. 
48;  Boyle  v.  Tamlyn,  6  B.  &  C.  329; 
Torrey  v.  Bank,  9  P:dge,  600;  Brett  v. 
Cumberland,  Cro.  Jac.  522;  Phelps  A^ 
Townsend,  8  Pick.  394;  Gale  v.  Nixon, 
G  Cow.  448;  Flagg  v.  Flagg,  11  Pick. 
375;  Trolter  v  Hughes,  12  N.  Y.  474; 
Buibauk  v.  Pillsbury,  48  X.  H.  475; 
Dow  V.  Harrahan,  108  Mass.  398; 
Thorn  v.  Keokuk,  48  N.  Y.  353; 
Maule  V.  Weaver,  7  Pa.  St.  39;  Bel- 
mont V.  Coman.  23  N.  Y.  438;  Murphy 
V.  Barnett,  1  Law  R.  106;  Burnett  v. 
Lynch,  5  B.  &  C.  589;  Maynard  v. 
Maynard,  4  Edw.  Ch.  711;  Curtis  v. 
Tvler,  9  Paige.  443;  King  v.  Wliitely, 

10  Paige.  465;  Rosenkrans  v.  Snover, 
19  N.  J.  E.  420;  Sheppard  v.  Hunt, 
4  N.  J.  E.  277;  Staines  v.  Morris,  1 
Ves.  &  B.   14;  Rogers  v.  Ins.  Co.,  9 


Wend.  618;  JMaynard  v.  Moore,  76  N". 
C.  176;  Dock  Co.  v.  Leavilt,  54  N.  Y. 
35;  Hathaway  v.  Payne,  34  N.  Y.  92; 
Walsh  V.  Barton,  24  Ohio  St.  28; 
DufTy  V.  R.  R..  2  Hilt.  496:  Rosselle 
V.  Wickham.  36  Barb.  386:  Wilkensv. 
Fry,  1  Me.  2G5;  Earle  v.  Mayor,  38  N. 
J.  L.  47;  Pettee  v.  Haines,  13  Pick. 
323;  Dyer  v.  Sandford,  9  Mel.  396; 
Houghton  V.  Carpenter,  40  Vt.  588; 
Linsley  v.  Lovely,  26  Vt.  123;  Ford  v. 
Yates,"  40  E.  C.  L.  508;  Manf.  Co.  v. 
Morse,  48  Vt.  322;  Campbell  v.  Camp- 
bell, 3  Head,  328;  Walls  v.  Ward,  2 
Swan,  648;  Spaldinsi;  v.  Hallenbcck, 
35  N.  Y.  206;  Woburn  v.  Hcnshaw, 
101  Mass.  193;  Harriman  v.  Park,  55 
N.  H.  471;  Porlertield  v.  Clark,  2  How. 
109;  Newell  v.  Hill,  2  Met.  281 ;  Good- 
win V.  Gilbert,  9  Mass.  514;  Nugent 
V.  Riley,  1  Met.  .117;  Emerson  v. 
Mooney,  50  N.  H.  320;  Hatch  v. 
Crawford,  2  Port.  54;  Parish  v. 
Whitney,  8  Gray,  516;  Plymouth  v. 
Carver,  16  Pic:k.  183;  Bayley  v.  Mc- 
Coy, 8  Oreg.  259;  Center  v.  Bank,  23 
Ala.  143;  Stines  v.  Dorman,  25  Ohio 
St.  580;  Clark  v.  Martin,  49  Pa.  St. 
299;  Seymour  V.  McDonald,  4  Sandf. 
Ch.  502;  Kellogg  V.  Rol)in.son,  6  Vt. 
276;  Kuupton  v.  Walker,  9  Vt.  191. 


Estoppel  by  Deed.  72o 

ingly  indented  for  the  purpose  of  identification,  and  a  deed  poll 
in  one  part  only,  cut  evenly  or  polled,  without  indenture.  The 
mechanical  process  v/as. essential  to  an  indenture,  for  "it  may  be 
an  indenture  without  words,  but  not  by  words  without  indent- 
ing.'" And  it  was  held  that  an  indenture  was  the  deed  of  the 
grantee,  though  not  executed  by  him,  because  he  accepted  it 
imjjorting  to  be  sealed  by  him ;  but  that  acceptance  of  a  deed 
poll  did  not  bind  him,  because  it  did  not  import  to  be  sealed  by 
him.*  There  were  once  meaning  and  purpose  in  these  distinc- 
tions, puerile  as  some  of  them  now  seem,  but  the  names  have 
long  survived  all  useful  sense.  In  our  conveyancing  these  sub- 
tleties ar#  practically  obsolete.  Our  common  deed  of  convey- 
ance is  never  indented  or  executed  in  parts,  and  is  not  an  inden- 
ture, though  it  so  calls  itself,  and  imports  execution  b}'  both 
parties.  It  is  universally  executed  and  dealt  with  as  a  deed  poll, 
and  sometimes  a  deed  poll  is  substituted  for  it,  without  questions 
of  diiference  in  law,  as  there  is  none  in  fact.  And  the  same 
effect  is  given  to  acceptance  of  deeds  poll  as  to  acceptance  of 
indentures,  without  pausing  to  weigh  the  subtleties  of  distinction 
M'hich  died  long  ago  out  of  the  practical  business  of  American 
life. 

§  591.  As  an  illustration  af  the  application  of  the  doctrine  of 
estoppel  to  what  is  known  as  deeds  poll  or  instruments  aflFecting 
the  title  to  land,  such  as  ordinary  deeds  of  conveyance,  signed 
and  executed  by  the  vendor  or  the  vendor  and  his  wife,  and  con- 
tracts to  convey  upon  conditions,  and  deeds  conveying  property 
upon  conditions  or  reservations  which  provide  when  and  how  the 
property  conveyed  may  revei't  to  the  grantor  or  his  heirs,  the 
following  cases  may  be  cited  :  Where  a  condition  in  a  deed  of 
land  provided  that  in  case  intoxicating  liquors  be  sold  in  any 
place  of  public  resort  thereon,  the  deed  shall  become  void  ;  on 
breach  of  such  condition  the  grantor  has  a  right  to  treat  the 
estate  as  having  reverted,  and  can  maintain  ejectment  without 
a  previous  entry  or  demand.  In  such  action  the  grantee  is 
estopped  to  deny  the  validity  of  the  title  conveyed  by  the  deed 
whereunder  he  took  possession.'     So  where  a  deed  from  a  father 

»  Co.  Litt.  229  a.  ^  Cowell    v.    Springs  Co.,   100    U. 

»  Co.  Litt.  229  a,  230  b.  S.  55. 


726  The  Law  of  Estoppel. 

to  a  son,  "  excepting  and  reserving  to  his  three  daughters  the 
right  of  being  on  the  farm  and  being  supported  from  it  as  long 
as  thej  remain  single,"  the  son  accepting  the  deed  is  estopped 
to  deny  its  conditions.'  The  grantee  of  a  deed  inter  partes  is 
bound  by  the  conditions,  covenants  and  stipulations  therein  on 
his  part,  although  the  deed  is  only  signed  by  the  grantor.  If 
they  be  such  as  are  legally  sufficient  to  create  an  easement  in  the 
premises  granted,  the  grantee  takes  the  land  subject  to  that  ser- 
vitude. The  most  familiar  example  of  the  application  of  this 
principle  is  where  a  person  accepts  a  lien  upon  or  interest  in  prem- 
ises, where  the  deed  of  conveyance  is  made  subject  to  a  mortgage 
for  a  sum  specified  in  the  deed,  which  deed  contains  a  further 
recital  that  the  grantee  assumes  the  payment  of  such  lien.  He 
can  neither  question  the  consideration  nor  the  validity  of  such 
mortgage,  and  if  in  the  pui'chase  price  of  said  property  the 
amount  of  such  lien  be  deducted,  the  grantee  thereby  estab- 
lishes its  validity,  and  cannot  thereafter  question  it  in  an  action 
to  foreclose  it."  The  deed  becomes  the  deed  of  the  grantee  as 
well  as  the  grantor,  and  he  is  bound  by  it.  "  A  deed  poll,  when 
accepted  by  the  grantee,  becomes  the  mutual  act  of  the  parties, 
and  a  stipulation  on  the  part  of  the  grantee,  though  it  cannot  be 
declared  upon  as  his  deed,  yet  by  force  of  his  acceptance  is  a 
valid  contract  on  Iiis  part  by  which  a  right  may  be  reserved  or 
granted,  or  upon  which  a  suit  may  be  maintained."  There  is  no 
distinction  in  favor  of  the  party  because  the  contract  is  executed 
by  him  alone.  It  is  for  that  reason  none  the  less  mutual  and 
binding  on  both  j^arties;  and  the  same  rule  applies  as  to  admissi- 
bility of  extrinsio  evidence,  as  though  both  parties  had  signed  it. 
The  Supreme  Court  of  Wisconsin,  in  a  case  of  this  nature,  said, 
"The  grantee  accepted  the  instrument,  entered    under   it,   and 

'  Maynarcl  v  Maynard,  4  Edw.  Ch.  Major  v.  Biilkley,  51  Mo.  227;  Kenedy 

711.  V.  Brown,  61  Ala.  29G;  Lawrence  v. 

■<  Miller  v.  Winchell,  70  N.  Y.  437;  Fox,  20  N.  Y.  268;  Green  v.  Kemp, 

Graves    v.    Mumlord,    26    Barb.    94;  13  Mass.  515;  Jackson  v.  Thompson, 

Sands  v.  Church,  6  N.  Y.  347;   Free-  6  Cowen,  178;   Lee   v.  Clark,    1   Hill, 

man  v,  Auld.  44  N.  Y.  HO;  Barnes  v.  56;  Bank  v.  Martin,  1  Met.  294;  Hol- 

Mott,  64  N.  Y.  397;  Eussell  v.  Pastor,  mes  v.  Ferguson,  1  Oreg.  220;  Cram 

7  N.  Y.  171;  Hartley  v.  Harrison,  24  v.    Ingalls,  18   N.    H.    613;    Haile   v, 

N.  Y.  170;  Ritter  v.  Phillips,  53  K  Y.  Nichols,  1(5  Hun,  37;  Root  v.  Wright, 

566;  Ricard  v.    Sanderson,  41  N.  Y.  21  Hun,  534;  Goodwin  v.  Keney,  49 

179;  Hardigree  v.  Mitchum,  51  Ala.151;  Conn.  563;  Post,  ch.  IX.,  Recitals. 


Estoppel  by  Deed.  727 

claims  to  have  complied  with  its  terms.  This  is,  in  effect,  the 
grantee's  answer.  It  -wonld  be  strange  if  it  conkl  accept  the 
grant  freed  from  the  provisions  qualifying  the  grant;  take  the 
estate,  without  the  limitations  of  the  estate  ;  claim  under  the 
contract,  without  being  bound  by  its  terms.  The  grantee  took 
its  right  cu7n  onere,  and,  by  accepting  the  instrument,  bound 
itself  as  much  by  the  terms  of  the  contract  as  if  it  had  sealed  it.'" 

§  592.  Where  husband  and  wife  join  in  a  deed  of  the  prem- 
ises, though  not  in  such  a  form  as  to  be  in  itself  a  release  uf  the 
homestead,  and  then  remove  from  the  premises,  and  the 
purchaser  enters  upon  the  same  and  sells  them,  it  works 
an  estoppel  npon  the  wife  as  to  the  claiming  of  a  home- 
stead right  therein."  But  one  taking  a  deed  from  a  debtor, 
in  which  is  a  recital  that  the  premises  are  those  on  which  the 
grantor  resides,  is  estopped  to  set  up  that  the  grantor  has  aban- 
doned the  premises  as  his  residence.'  But  so  far  as  a  husband 
has  an  interest,  independent  of  his  wife  and  children,  in  a  home- 
stead estate,  he  is  at  liberty  to  convey  it  subject  to  their  rights, 
and  may  enter  into  covenants  in  respect  to  the  same  which  will 
bind  and  estop  him,  as  in  the  conveyance  of  any  other  estate. 
But  if  he  convey  with  covenants  of  warranty,  he  is  estopped  to 
claim  it  against  his  grantee  or  his  assigns,  nor  is  it  any  bar  to  an 
action  by  such  grantee  to  recover  possession  of  such  estate,  that 
the  grantor's  children  are  entitled  to  a  homestead  therein,  unless 
the  same  has  been  set  out  and  assigned  as  sucli.  If  such  grantor 
attempts  to  have  a  homestead  set  out  against  a  grantee,  he  is 
estopped  in  equity  from  so  doing.  Xor  can  his  wife  and  minor 
children  do  this  during  the  husband's  life  in  proceedings  against 
a  purchaser  with  covenants.  They  are  as  much  estopped  thereby 
as  the  husband.*  While  a  conveyance  by  the  husband  of  the 
homestead  to  which  the  wife  is  not  a  ])arty,  is  inoperative  to  con- 
vey her  homestead  right,  it  estops  the  administrator  of  the 
deceased  husband  from  asserting  title  as  against  those  claiming 
under  it.'     In  Georgia  it  is  held  that  the  husband  may  waive  the 

»  Hutchinson  v.  R.  R.,  37  Wis.  602.  Christy  v.  Dyer,  14  Iowa,  438. 

2  Brown     v.    Coon,    36    111.    243;  *  Foss  v.    Strachn,   42    N.  H.  42; 
Wales  V.  Coffin,  13  Allen,  216.  Williams   v.    Swetland,  10  Iowa,  51. 

3  Williams  v.  Swetland,  10Iowa,51;  '  Irion  v.  Mills,  41  Tex.  310. 


728 


Tii?]  Law  of  Estoppel. 


riglit  of  ]ioinesteacl,  and  his  waiver  will  bind  his  family  and  wife 
as  effectually  as  if  she  had  joined  in  it.' 

§  593.  Where  parties  claim  title  from  one  person  as  a  common 
source,  they  are  csto])ped  from  denying  the  title  of  the  original 
claimant  from  whom  they  derive  title.  And  where  parties,  if 
living,  would  thus  be  estopped,  their  heirs  and  privies  in  estate 
are  likewise  estopped."  In  a  contest  for  town  lots,  both  parties 
claiming  under  the  trustees,  the  defendant  is  estopped  to  deny 
the  right  of  the  trustees  or  to  set  up  an  outstanding  title  f  where 
parties  enter  into  possession  under  a  compromise  and  occupy  and 
enjoy  according  to  the  terms  of  it  for  eleven  years,  they  cannot 
afterwards  repudiate  it  ;*  where  a  person  received  the  legal  title 
of  land  for  the  use  of  certain  creditors  of  the  owner  thereof,  he 
cannot  set  up  any  title  which  would  effect  the  trust  ;*  where 
parties  go  into  possession  of  premises  claiming  title  thereto  under 
a  conveyance  to  a  particular  grantee,  they  cannot  set  up  an  out- 
standing title  in  a  stranger  to  defeat  the  person  under  the  same 
title  as  themselves  ;*  where  a  conveyance  was  by  man  and  wife, 
and  possession  taken  under  her  deed,  though  the  deed  be  inef- 


'  Jackson  v.  Parrott,  67  Ga.  210; 
Bowen  V.  Bowen,  55  Ga.  183;  Smith 
V.  Shepherd,  G3  Ga.  454;  Simons  v. 
Anderson,  56  Ga.  53. 

^  Gaines  v.  Now  Orleans,  6  Wall. 
642;  Hamblin  v.  Bank,  19  Me.  06; 
Bliss  V.  Smith,  1  Ala.  273;  Simmons 
v.  Hendiickson,  3  Ilarring.  103;  Koss 
V.  Durham.,  4  Dev.  &  B.  54;  Phelps 
V.  Blount,  2  Dev.  L.  177;  English  v. 
Wright,  1  N.  J.  L.  437;  Harris  v. 
Gardner,  10  3Ie.  383;  Dashiel  v.  Col- 
lier. 4  J.  J.  ]\rarsh.  601;  Steele  v. 
Sclmcker,  45  Wis.  134;  Hall  v. 
Armor,  68  Ga.  449;  GUI  v.  Faunt- 
leroy,  8  B.  Jlon.  177;  Colburn  v. 
Broughton,  9  Ala.  351;  Bank  v.  Mer- 
serean,  3  Barb.  Ch.  528;  Irion  v. 
Mills,  41  Tex.  310;  Booth  v.  Wiley. 
102  111.  84;  Ames  v.  Beckley,  48  Vt. 
305;  Elwood  V.  Lannon,  27  Md.  200; 
Kimball  v.  Semple,  25  Cal.  40;  Roys- 
ton  V.  Wear,  3  Head.  8;  Rhiues  v. 
Baird,  41  Pa.  St.  256;  Schumaker  v. 


Hoover,  22  Wis.  43;  Murphy  v.  Bar- 
nett,  2  Murph.  251;  Barwick  v.  Wood, 
3  Jones  L.  306;  Banks  v.  Ammon,  27 
Pa.  St.  172;  Roystou  v.  Wear,  3 
Head,  8;  Ives  v.  Sawj-er.  4  D.  &  B. 
51;  Bridge  v.  Wellington,  1  Mass. 
219:  Gardner  v.  Sharp,  4  Wash.  609, 
Ellis  v.  Jeans,  7  Cal.  409;  McClain  v. 
Gregg,  2  A.  K.  Marsh.  454;  Johnson 
V.  Walts,  1  Jones  L.  228;  Kissam  v. 
Gaylord,  1  Jones  L.  224;  Thomas  v. 
Kellj',  1  Jones  L.  375;  Monet te's  Suc- 
cession. 26  La.  An.  26;  ilickey  v. 
Stratton,  5  Sawyer,  475;  Campbell  v. 
Trunnell,  61  Ga.  518. 

'  McClain  v.  Gregg,  2  A.  K.  Marsh. 
454;  Bunker  v.  Rand,  19  Wis.  260; 
Jackson  v.  Jones,  9  Cow.  182. 

*  Colborn  v.  Broughton,  9  Ala.  351; 
Washburn  v.  Washburn,  4  Ired.  Eq. 
306. 

5  pmic  V.  Oliphant,  14  Pa.  St.  342 

« Bank  v.  3Ierserau,  3  Barb.  Ch. 
528. 


Estoppel  by  Deed.  729 

fectual  from  defect  in  the  acknowledgment,  the  grantees  in  the 
deed  are  estopped  to  assert  an  outstanding  title  in  a  third  person, 
in  a  contest  with  the  heirs  of  the  wife,  after  the  death  of  the 
husband.*  An  estoppel  will  generally  be  suppressed  where  its 
enforcement  would  produce  fraud,  and  will  on  the  other  hand  be 
called  into  being  for  the  prevention  of  fraud.  A  vendor  M'ho 
sells  real  estate  to  an  executor,  receives  the  money  and  executes 
a  deed  therefor  in  accordance  with  the  terms  of  the  contract  of 
sale,  is  thereby  estopped  from  claiming,  in  an  action  brought 
against  him  by  the  executor  for  rent  received  after  the  sale,  that 
the  purchase  is  invalid  because  niade  to  the  e-xecutor,  without 
being  authorized  by  a  probate  court.*  It  is  well  settled  in  Eng- 
land that  the  rule  estopping  a  party  by  his  deed,  does  not  apply 
so  as  to  preclude  a  party  from  asserting  that  the  transaction  was 
contrary  to  law  or  void,  on  the  ground  of  fraud,  and  for  this  pur- 
pose giving  evidence  to  contradict  the  statements  contained  in 
the  deed.  In  this  country,  it  is  held  that  a  grantor,  with  full 
knowledge  of  the  facts,  is  estopped  from  testifying  that  Ids  war- 
ranty of  title  was  fraudulent  and  void.' 

§  594.  The  owners  of  a  tract  of  land  purchased  at  a  land  sale 
are  estopped  to  deny  the  right  of  one  who  has  bought  at  a  sale 
under  an  execution  against  him,  though  siK3h  purchaser  at  the 
land  sale  has  not  yet  paid  for  the  land  and,  therefore,  has  acquired 
no  legal  title."  If  one  makes  an  obligation  under  duress  and 
after  being  at  large  takes  a  defeasance  upon  it,  tliis  makes  the 
obligation  good  again  and  estops  the  obligor  from  saying  that  it 
was  by  duress.^  Thus  subsequent  acts  of  ratification  by  a  mort- 
gagor estop  him  from  setting  up  duress  as  a  defense  to  an  action 
of  foreclosure. 

§  595.  The  declarations  of  parties  to  a  public  act  cannot  be 
contradicted  by  parol  testimony  introduced  by  the  party  who  has 
made  those  declarations,  unless  on  the  allegation  and  proof  of 
fraud,  duress  or  error.®     So  where  a  defendant  convej^ed   prem- 

*  Gill    V.    FauDtleioy,  8    B.  Mon.  *  Huasucker    v.    Tipton,    13    Ired. 

177.  481. 

'  McNaraee  V.  Moreland,  26  lo-wa,  ^  Shep.  Touchstone,  §  62;  Bartle  v. 
96.  Breniger,  37  Iowa,  139. 

^  Fredericks  v.  Davis,  3  Mont.  251.         ^  McRae  v.  Creditors,  16  La.  Ann, 

305. 


730  The  Law  of  Estoppel. 

ises  in  controversy,  by  warranty  deed  to  "  C."  and  plaintiff 
claimed  under  an  execution  sale  thereof  to  "  C,"  tliu  defendant 
was  estopped  b}'  his  deed  from  asserting  any  title  against  all 
claiming  under  "  C"  Where  the  averments  in  a  petition 
amount  to  an  acceptance  of  a  succession,  the  plaintiff  is  estopped 
fi-om  contesting  a  valid  title  derived  from  the  person  whom  he 
succeeds,  he  is  the  warrantor  of  the  title."  One  who  gives  a  deed 
of  lands  which  are  in  adverse  possession  of  another,  is  estopped 
from  disputing  the  deed,  and  the  grantee  njay  enforce  his  rights 
under  it  against  the  person  in  possession  in  the  name  of  the 
grantor.'  The  sftle  by  one  part  owner,  while  it  is  inoperative 
against  the  other  joint  owners,  and  cannot  affect  their  interest  in 
the  property,  will  operate  against  him  by  way  of  estoppel.* 
A  conveyance  by  a  grantor  to  a  grantee,  both  out  of  possession, 
given  to  remedy  a  defect  in  a  former  deed  executed  by  the  gran- 
tor, and  to  fortify  the  title  of  the  possessor  of  the  premises,  or 
that  derived  from  him,  is  valid  for  that  purpose,  and  to  estop 
the  grantor  from  setting  up  the  defect.* 

§  596.  There  is  an  implied  warranty  between  coparceners  as 
to  the  property  allotted  in  partition,  which  will  work  an  estoppel,* 
where  partition  is  made  and  the  parties  take  possession  according 
to  the  survey  and  map  made  at  the  time.  They  are  estopped 
from  controverting  a  boundary,  on  the  ground  of  an  alleged  mis- 
take, which  they  claimed  to  have  discovered  in  a  later  survey.' 
So  where  the  owner  of  a  life  estate,  and  the  owner  of  a  fee  made 
partition  of  land  and  executed  to  each  other  releases  in  fee,  after 
the  division,  a  sale  and  conveyance  by  either  party,  of  the  por- 
tion allotted  them  in  the  partition,  is  a  contirmation  of  the 
partition,  and  estops  the. parties  from  claiming  any  interest  in  the 
part  allotted  to  the  other."  A  party  is  not  estopped  by  his  admis- 
sion or  assertion  of  a  conclusion  of  law  upon  undisputed  facts. 
Thus,  where  there  had  been  a  partition  of  real  estate  among 
devisees  by  action,  and  occupying  under  it,  claiming  as  owners  in 

'  Dodge  V.  Walley,  22  Cal.  224.  »  Fiyer  v.    Rockefeller,    63  iS\  Y. 

"  McQueen  v.  Sunders,  15  La.  Ann.  268. 

141.  6  Farrar    v.    Christy,    33    Mo.    44. 

3  Stockton  V.    Williams,    1    Doug.  '  Jackson  v.   Husbrouck,  3  Johns. 

526.  331;  Knapp  v.  Marlborough,  29  Vt. 

*  Trannell  v.  McDade,  29  Tex.  364.  282. 

8  Baker  v.   Lorillard,  4  N.  Y.  257. 


Estoppel  by  Deed.  781 

fee,  it  was  held  that  no  estoppel  was  created,  as  against  one  of 
the  devisees  in  favor  of  his  judgment  creditor,  who  purchased  the 
share  of  such  devisee,  at  a  sale  under  his  own  execution,  so  as  to 
prevent  such  devisee  from  showing,  in  order  to  defeat  such  pur- 
chasers' action  of  ejectment,  that  by  the  devise,  the  legal  estate 
was  vested  in  the  executors  and  not  in  the  devisees,  at  the  time  of 
the  docketing  of  such  judgment,  and,  therefore,  that  such  judg- 
ment was  not  a  lien  on  the  share  of  such  deviseC;  and  the  pur- 
chaser acquired  no  right  or  title  by  his  purchase  at  said  sale.' 

§  597.  In  Massachusetts  the  certificate  of  acknowledgment 
and  the  registration  of  a  deed  do  not  estop  a  third  person  from 
proving  that  both  the  deed  and  the  certificate  were  fraudulently 
antedated."  In  regard  to  acknowledgments  of  instruments  affect- 
ing the  title  to  real  estate  there  has  heretofore  been  no  little 
judicial  discussion  in  regard  to  their  effect ;  either  2l&  jprima  fade 
or  conclusive  evidence.  These  discussions  arise  principally  from 
the  two  questions  as  to  whether  the  taking  and  certifying  of  an 
acknowledgment  is  a  judicial  or  ministerial  act ;  and  also  arise 
in  States  where  the  statutes  require  a  private  or  separate  examina- 
tion of  the  wife,  requiring  the  officer  to  make  known  to  the  wife 
the  contents  of  the  instrument  which  she  is  about  to  acknowledge, 
and  to  detern)ine  from  her  responses,  whether  it  is  executed  of 
her  own  free  will  and  accord  ;  to  which  facts  the  officer  is  com- 
pelled to  certifj' ;  the  other  arises  in  those  States  where  the 
common  law  rule  has  been  abolished,  and  the  parties  go  before  an 
officer  and  simply  acknowledge  the  execution  of  the  instruments. 
The  principal  discussion  of  these  matters  will  be  found  to  have 
arisen  in  suits  brought  by  mortgagees  to  obtain  a  foreclosure  of 
the  lien  securing  their  debts ;  and  the  question  has  been  generally 
raised  by  the  wife  of  the  mortgagor  or  debtor  in  attempting  to 
avoid  the  effect  of  the  lien  by  setting  up  its  invalidity  on  account 
of  her  acknowledgment.  Tliis  subject  is  fully  examined  in 
Herman  on  Mortgages  on  Real  Estate,  ch.  12,  where  the  cases  are 
collated,  iind  from  which  the  following  principles  are  taken  : 
first,  that  in  taking  the  acknowledgment  of  husband  and  wife  to 
an  instrument  affecting  real  estate  where,  by  local  statutes,  a 
separate  examination  of  the  wife  is  necessary,  the  officer  acts  in  a 

»  Brewster  v.  Striker,   2  N.  Y.  19.  "  Holbrook  v.  Bank,  2  Curtis  C.   C 

244. 


732 


Thp:  Law  ok  Estoppel. 


judicial  capacity,  and  it  seems  upon  principle  that  he  also  does, 
wlierc  the  separate  examination  has  been  abolished  ;  for  it  seems 
that  he  must  know  the  parties  to  be  the  same  ones  whose  signa- 
tures are  appended  to  the  instrument,  and  must  also  determine 
whether  thej'  voluntarily  acknowledge  its  execution.  With  the 
exception  of  the  separate  examination,  the  duties  in  either  case 
are  in  a  manner  similar.  There  is  no  good  reason  upon  principle, 
why  one  should  be  a  judicial  act  any  more  than  the  other. 

§  598.  It  is  a  well  settled  principle  that  where  there  is  no 
notice  of  fraud  or  duress  in  its  executijon,  it  is  conclusive  as  to  all 
matters  which  it  is  the  duty  of  the  acknowledging  officer  to  cer- 
tify if  he  has  jurisdiction.'     It  may  be  avoided  for  fraud,  but  the 


»  Arnaz  v.  Escandon,  59  Cal.  486; 
Coleman  v.  Smith,  55  Ala.  368;  Smith 
V  McQueen,  55  Ala.  369;  Bohan  v. 
Casej^  5  Mo.  App.  101;  Harpeudiug 
V.  Wylie,  14  Bush,  380;  Baruett  v. 
Proskauer,  63  Ala.  485;  Cahall  v.  Ass. 
61  Ala.  232;  Knowies  v.  Knowles, 
86  111.  1;  Fitzgerald  v.  Fitzgerald, 
100  111.  385;  Pribble  v.  Hall,  13  Bush, 
61;  Singer,  ttc.  Co.  v.  Rook,  84  Pa.  St. 
442;  Hornbeek  v.  Ass.,  88  Pa.  St.  64; 
Htiltv.  Moore,  37  Ark.  145;  Meyer  v. 
Gossett,  38  Ark.  377;  Davis  v.  Ken- 
nedy, 58  Tex.  516;  Shelby  v.  Burtis, 
18  Tex.  644;  Wiley  v.  Prince,  21  Tex. 
637;  Williams  v.  Pouns,  48  Tex.  146; 
Waltee  v.  Weaver,  57  Tex.  569; 
Kocourek  v.  Marak,  54  Tex.  205; 
Smith  V.  Ward,  2  Root,  374;  Jackson 
v.   Schoonmaker,  4    Johns.    R.    161; 

Thurman  v.  Cameron,   24   Wend.  87; 

f 
Schrader    v.    Decker,    9   Pa.   St.  14; 

Hale    V.    Patterson,  51   Pa.    St.  289; 

Williams  v.    Baker,   71  Pa.   St.    481; 

Duflf   V.    Wynkoop,    74  Pa.  St.  300; 

Heeter    v.    Glasgow,  79.  Pa.    St.  79; 

Eyster  v.  Hathaway,  50  111.521;  Wan- 

nell  V.Kern,  57   Mo.    478;    Tatum  v. 

Goforth,    9    Iowa,    247;  Borland   v. 

Walrath,    33  Iowa,    180;    Pringle    v. 

Dunn,    37    Wis.   449;  Dodge  v.   Hol- 

Ungshead,  6  Minn.  46;    Edgertou  v. 


Jones,  10  Minn.  427;  Fisher  v.  Meis- 
ter,  24  Mich.  447;  Hourtienue  v. 
Schnoor,  38  Mich.  274;  Johnson  v.Pen- 
dergrass,  4  Jones  L.  479;  Ford  v. 
Teal,  7  Bush,  156;  Woodhead  v... 
Foulds,  7  Bush,  222;  Hughes  v.  Cole- 
man, 10  Bush,  246;  Bledsoe  v.  Wiley, 
7  Humph.  507;  Westbiooks  v.  Jef- 
t'ers,  33  Tex.  86;  Landers  v.  Boll  on; 
26  Cal.  406;  Doe  v.  Lloyd,  1  M.  &  Gr. 
671;  Kinuer.'iley  V.  Orpe,  1  Doug.  58; 
People  V.  Ilerbeit,  44  Barb.  126; 
Stevens  v.  Martin,  18  Pa.  St.  101; 
Kleichiue  v.  Kleiehine,  54  Pa.  St.  75; 
Middietonv.  Dubuque,  19  Iowa,  467; 
Htiteliinson  v.  liust,  2  Gratt.  294; 
Jamison  v.  Jamison,  3  Whart.  457; 
Barnett  v.  Baruett.  15  S.  &  II.  73; 
Mieheiier  v.  Cavender,  38  Pa.  St.  334; 
Miller  V.  Weiitwortli,  83  Pa.  St.  280; 
Loudon  v.  Blythe,  16  Pa.  St.  532; 
Monroe  v.  Poorman,  62  111.  523; 
Ridgely  v.  Howard,  3  Md.  322;  Mc- 
Neely  v.  Riicker,  6  Blackf.  391;  Bis- 
selt  V.  Bissett,  1  Md.  211;  Watson  v. 
Bailey,  1  Bum.  470;  Elliott  v.  Pier- 
sol,  1  Pet.  338;  Baruett  v.  Shaekle- 
ford,  6  J.  J.  Marsh.  532;  Green  v. 
Godfrey,  44  Me.  28;  Louden  v. 
Blythe,  27  Pa.  St.  22;  Hartley  v. 
Frosh,  6  Tex.  208;  Welbrook  v.  Jef- 
iers,    33   Tex.    86;    Hays  v.   Hays,  5 


Estoppel  by  Deed. 


733 


knowledge  of  it  must  be  brouglit  home  to  the  grantee.  The 
proof  must  be  full,  clear  and  convincing  ;  it  is  conclusive  in  favor 
of  any  one  who  accepts  it  in  good  faith  without  reason  to  suspect 
it  to  be  untrue  ;  that  is,  it  is  open  to  rebuttal  between  the  par- 
ties by  proof  of  imposition  or  fraud,  but  not  otherwise.  Nor  will 
a  public  officer,  after  performing  an  act  required  by  law,  be  per- 
mitted to  defeat  its  effect  by  impeaching  his  own  certificate.' 

In  Young  v.  Duval,"  the  Supreme  Court  of  the  United  States, 
in  a  case  of  this  character  said  :  "  The  bill  sets  forth  several 
grounds  upon  which  relief  to  that  extent  is  asked,  but  those  only 
deserve  serious  consideration  which  are  embraced  by  averments 
to  the  following  effect :  That  the  contents  of  the  deed  w^ere  never 
explained  to  her  ;  that  she  signed  it  because  she  was  required, 
ordered  and  commanded  to  do  so  by  her  husband  and  a  person 
who  was  with  hina  ;  that  its  contents  were  never  known  or 
explained  to  her  by  the  officer  ;  that,  so  far  from  her  having  been 
examined,  in  reference  to  the  deed,  privily  and  apart  from  her 
husband,  the  latter  remained  in  the  presence  of  herself  and  the 


Rich.  81;  Montgomery  v.  Hobson, 
Meigs,  437;  Williams  v.  Robsou,  6 
Ohio  St.  510;  Jeffreys  v.  Decker,  42 
111.  619;  Wannell  v.  Kern,  57  Mo. 
478;  Grabam  v.  Anderson,  43  111.  514; 
Lickman  v.  Harding,  65  111.  505;  Cal- 
umet, &c.  Co.  V.  Russell,  68  111.  426; 
Kerr  v.  Russell,  69  111.  666;  Allen  v. 
Sbortridge,  1  Duval,  84;  Jett  v.  Rog- 
ers, 12  Bush,  564;  Young  v.  Duval, 
109  U.  S.  578;  Jordan  v.  Corey,  2 
Ind.  385;  Wright  v.  Bundy.  11  Ind. 
400;  Bank  v.  Copelauil,  18  Md.  805; 
Miller  v.  Wentworth,  82  Pa.  St.  280; 
Hoffman  v.  Coster,  2  AVhart.  458; 
Baldwin  v.  Snowdun,  11  Ohio  St.  218; 
Johnston  V.  Haines,  2  Ohio,  279;  Kil- 
bourn  v.  Fury,  26  Ohio  St.  158;  Pool 
V.  Chase,  46  Tex.  207;  Hill  v.  Bacon, 
43  111.  477;  Banks  v.  Ollcrton,  26  E. 
L.  &  Eq.  508;  Thompson  v.  Thomp- 
son, 2  Ch.  Gas.  211;  Robinson  v. 
Chassey,  1  Han  nay,  (N.  B.)  50;   Mc- 


Phcrson  v.  Sanborn,  88  111.  150; 
Woodbourue  v.  Sorrel,  66  N.  G.  82; 
Harrcil  v.  Elliott,  2  Hayw.  68;  Paul 
V.  Carpenter,  70  N.  C.  502;  Sunderetb 
V.  Smyth,  13  Ired,  452;  Lucas  v. 
Cobb,  1  Dev.  &  Bat.  228;  Finegan  v. 
Finegan,  8  Tonn.  Ch.  510;  Norton  v. 
:Nichois,  35  Mich.  148;  Steffen  v. 
Bauer,  70  Mo.  399;  Johnston  v.  Wal- 
lace, 53  Miss.  381;  Stone  v.  Montgom- 
ery, 85  Miss.  88;  Allen  v.  Lenoir,  53 
Miss.  321 ;  Harkins  v.  Forsyth,  11 
Leigh,  294;  Tod  v.  Baylor,  4  Leigh, 
498;  Carper  v.  McDowell,  5  Gratt. 
212;  :\Iiller  v.  Marx,  55  Ala.  822; 
Moimt  V.  Kesterson,  6  Coldw.  452; 
Mathews  v.  Dare,  20  Md.  248; 
Kavanagh  v.  Day,  10  R.  I.  393; 
Stranch  v.  Ilatliaway,  101  111.  11;  S. 
C,  40  Am.  R.  193;  Paxton  V.  Marshall, 
18  Fed.  R.  361;  Moses  v.  Dade,  58  Ala. 
211. 

'  Bank  v.  Copeland,  18  Md.  305. 

"  109   U.  S.  573. 


734  The  Law  of  EsToprEL. 

officer  on  the  occasion  when  it  is  chiiiiied  she  signed,  acknowl- 
edged, and  delivered  it." 

"  It  was  in  proof  that  Mrs.  Y.  sii^ned  the  note  and  the  deed, 
having  an  opportunity  to  read  papers  before  signing  them  ;  slie 
was  before  an  officer  competent  under  the  Law  to  take  lier 
acknowledgment,  and  he  came  into  her  presence  for  the  pui'pose 
of  receiving  it ;  he  so  came  at  the  request  of  the  husband,  who 
expected,  by  means  of  the  executed  deed  of  trust,  to  secui'c  a 
loan  from  L.  of  the  amount  specified  in  the  note  ;  and  she  knew, 
or  could  readily  have  ascertained  while  in  the  presence  of  the 
officer,  as  well  to  what  property  the  deed  referred  as  the  object 
of  its  execution.  There  is,  however,  a  conflict  in  the  evidence 
as  to  whether  she  willingly  signed,  sealed,  and  delivered  the  deed, 
or  had  its  contents  fully  or  at  all  explained  to  her  by  the  officer, 
or  was  examined  privily  and  apart  from  her  husband, 

"  It  is  not  necessary  to  enter  upon  a  review  of  the  adjudged 
cases  bearing  upon  the  general  question  of  the  effect  to  be  given 
to  the  certificate  of  an  officer  taking  an  acknowledgment  of  a  mar- 
ried woman  to  a  conveyance  of  real  estate  ;  for,  if  it  be  assumed, 
for  the  purposes  of  this  case,  that  it  is  ou\y  jJi'iraa  facie  evidence 
.of  the  facts  stated  in  it,  we  are  of  opinion  that  the  integrity 
of  the  certificate  before  us  has  not  been  successfully  impeached. 
The  certificate  of  the  officer  states  ever}-  fact  essential,  under  the 
statute,  to  make  the  deed,  upon  its  being  delivered  for  record,  as 
effectual  in  law  as  if  Mrs.  Y.  was  an  unmarried  woman.  The 
duties  of  that  officer  were 'plainly  defined  by  statute.  It  was 
incumbent  upon  him  to  explain  the  deed  fully  to  the  wife,  and 
to  ascertain  fi'om  her  whether  she  willingly  signed,  sealed,  and 
delivered  the  same,  and  wished  not  to  retract  it.  The  respon- 
sibiHty  was  upon  him  to  guard  her  against  coercion  or  undue 
influence  upon  the  part  of  the  husband,  in  respect  of  the  execu- 
tion and  delivery  of  the  deed.  To  that  end  he  was  required  to 
examine  her  privily  and  apart  from  the  husband.  These  facts 
were  to  be  manifested  by  a  certificate  under  his  hand  and  scab 
Of  necessity,  arising  out  of  considerations  of  public  policy,  his 
certificate  must,  under  the  circumstances  disclosed  in  this  case,  be 
regarded  as  an  ascertainment,  in  the  mode  prescribed  by  law,  of 
the  facts  essential  to  his  authority  to  make  it ;  and  if,  under  such 
circumstances,  it  can  be  contradicted,  to  the  injury  of  those  who 


Estoppel  by  Deed.  735 

in  good  faith  liave  acted  upon  it — upon  which  question  we 
express  no  opinion — tlie  proof  to  that  end  must  be  of  such  a 
cliaracter  as  will  clearly  and  fun.y  show  the  certificate  to  be  false 
or  fraudulent.*  The  mischiefs  that  would  ensue  from  a  different 
rule  could  not  well  be  over-stated.  The  cases  of  hardship  upon 
married  women  that  might  occur  under  the  operation  of  such  a 
rule  are  of  less  consequence  than  the  general  insecurity  in  the 
titles  to  real  estate  which  would  inevitably  follow  from  one  less 
rigorous." 

"  It  is  sufficient  for  the  disposition  of  tliis  case  to  say  that 
even  upon  the  assumption  that  the  certificate  is  ovAy  jprimafacie 
evidence  of  the  facts  stated  in  it,  the  jproof  is  not  of  that  cleai\ 
complete,  and  satisfactory  character  which  m.ust  he  required  to 
impeach  the  official  statements  of  the  officer  who  certified  Mrs. 
Y.'s  acknowledgment  of  the  deed  in  question. 

§  599.  Fraud  will  vitiate  anything,  even  the  most  solemn 
transactions;  any  asserted  title  founded  on  it,  is  utterly  void.^ 
Fraud  is  an  extrinsic,  collateral  act,  which  vitiates  the  most  solemn 
proceedings  of  courts  of  justice  and  avoids  all  judicial  acts.  A 
voluntary  conveyance  or  any  conveyance  in  fi'aud  of  the  law  is 
not  a  nullity,  but  binds  parties  and  privies,'  though  voidable  at- 
8uit  of  creditors  defrauded  thereby.  An  invalid  contract  is  no 
estoppel.  Thus,  where  a  paper  signed  by  a  judgment  debtor  and 
delivered  to  the  attorney  of  his  creditors  agreeing  to  compromise 
the  judgment  in  a  certain  way,  or  in  default  thereof  to  deliver 
certain  propertj'  levied  upon  in  payment,  can  not  estop  him  from 
claiming  that  the  levy  was  invalid,  where  it  appears  that  the 
attorney  had  no  authority  to  enter  into  such  agreement,  oi'  to 
compromise  the  judgment  in  any  manner.*  Every  creditor  who 
signs  a  composition  deed  is  estopped  fi'om  setting  up  any  private 
agreement  repugnant  to  its  terms,  or  inconsistent  with  its  inten- 
tion or  spirit.^     So   where  A.   executed  an   agreement  signed  in 

'  Ins.  Co.  V.  Nelson,  103  U.  S.  544.  577. 

7  United     States    v.     Amistad,     15  *  Ilickoy  v.  Hinsdale.  12  Mich.  99. 

Peters,  518.  ^  Brerk  v.  Cole,  4  Sand.  79;  Knight 

3  Randall  v.  Phillips,  3  Mason  C.  C.  v.  Hunt,  5  Bing.  432;  Sadler  v.  Jack- 

R.  378;   Peterson  v.  Brown,  17  Nev^.  son,  15  Vos.  32;  Lfccister  v.  Rose,  4 

172;   S   C,  45  Am.   R.   439;    Ante,  §  East,  372;  Middleton  v.  Onslow,  1  P. 

Wms.  768. 


736  The  Law  of  Estoppel. 

his  own  name  which  referred  to  a  schcdnle  annexed,  which 
schedule  was  signed  by  A.  and  B.,  A.  is  estopped  from  denying 
that  he  signed  it.' 

§  600.  Gifts  and  voluntarj^  conveyances  made  by  the  husband 
to  the  wife,  without  fraudulent  intent,  at  a  time  when  he  is  not 
indebted,  cannot  be  called  in  question  by  subsequent  creditors  ; 
so  where  a  grantor  conveys  premises  to  a  woman,  on  receiving 
the  price  from  her  husband,  he  is  estopped  by  his  conveyance 
from  complaining  that  the  conveyance  was  in  fiaud  of  himself 
as  a  creditor  of  the  husband,  for  he  not  only  consented  but  per- 
formed the  act  himself."  A  purchaser  of  land  who  has  knowledge 
of  facts  which  estop  his  grantor  from  asserting  title  to  the  granted 
premises,  stands  in  the  same  condition  as  his  grantoi-.'  Thus 
where  a  party  conveyed  an  estate  by  entireties  to  a  man  and  wife, 
the  grantee  being  the  debtor  of  the  grantor,  the  grantor  brought 
an  action  for  the  debt,  obtained  judgment  and  sold  the  land  he 
had  conveyed,  both  he  and  t'.ie  purchaser  were  estopped  from 
alleging  that  the  conveyance  was  made  to  the  wife  in  fraud  of 
her  husband's  creditors.  If  the  grantee  in  a  deed  is  estopped, 
his  administrator  with  the  will  annexed  is  also  estopped.'*  A 
widow  continuing  in  possession  of  land,  is  estopped  to  deny  the 
title  derived  under  her  husband's  deed/  Where  one  conveys 
certain  j-eal  estate  to  the  husband,  and  nuvkes  a  deed  to  the  wife 
of  a  portion  of  the  same  land  conveyed  in  the  deed  to  the  hus- 
band, reciting  that  the  consideration  proceeds  from  the  wife's 
estate,  the  grantor  being  estopped  to  deny  that  liis  second  deed 
conveyed  any  estate,  his  administrator  is  bound  by  the  same 
estoppel.  A  deed  which  is  an  act  of  maintenance,  by  reason  of 
an  adverse  possession,  is  yet  effectual  between  the  parties,  for  it 
estops  the  grantor  and  is  a  bar  to  bis  recovery  in  ejectment."  In 
a  title  to  land  by  estoppel,  ejectment  may  be  maintained." 

»  Smith  V.  Buruham.  9  John.  i506.  '  Giandy  v.  Bailey.  13  lied.  221. 

2  Phillip.s  V.    ■\^'o()ste^,    36    N.    Y.  «  Bro.  fit.   Feoffments.   PI.    li),   27 

412;  Baker  v.  Loiillaid.  4  N.  Y.  2o7.  Hen.  8th  fol.  23,  b,  24,  a;  Co.  Lil.  36!)  r, 

"  Stiuchfield    v.    Emerson,    52    Me.  Cro.  Eliz.  445;  Hank,  b  1,  c.  86;  Jack- 

465;   Phillips  v.   Wooster,   36  .N  Y.  son  v.  Demont,  9  .Johns.  55;  .Jackson 

412.  V.  Wheeler.  10  Johns.  164. 

*  Dennison  v.  Ely,  1  Barb.  610.  '  btoddart  v.  Chambers,  2  Howard, 

284;  Harvey  v.  Carlisle,  23  Ala.  635. 


Estoppel  by  Deed,  737 

§  601.  Where  land  was  purchased  for  a  specific  purpose  by 
several  grantees,  on  condition  that  it  should  not  be  divided,  the 
grantees  and  those  claiming  under  them  are  estopped  from 
claiming  jjartition  or  division.  Thus  where  land  was  purchased 
for  the  site  of  a  hotel  (to  be  erected  by  an  association),  and  con- 
veyed to  the  individual  members  in  individual  shares,  upon  con- 
ditions that  each  member,  his  heirs  and  assigns,  should  hold  the 
same  in  common  with  the  tenants  of  the  other  parts  without 
partition  or  division,  the  grantees  and  those  claiming  under  them 
were,  as  against  the  others,  estopped  to  demand  partition,  as  all 
claimed  under  deeds  from  the  same  grantors,  and  the  deeds  were 
made  in  pui-suance  and  furtherance  of  a  common  object,  and  as 
part  of  the  same  general  transaction.' 

§  602.  "Where  the  owner  of  land,  for  the  purpose  of  evading 
the  payment  of  the  debt  of  an  anticipated  creditor,  conveys  the 
same  to  another,  to  be  held  as  a  secret  trust  for  the  grantor,  equity 
would  not  enforce  the  trust,  yet  should  the  grantor  die  while  the 
title  was  thus  situated,  and  the  grantee  and  trustee  voluntarily 
convey  the  land  back  to  the  executors  of  the  grantor,  who  accept 
the  conveyance  in  their  capacity  as  executoi-s,  and  for  the  avowed 
purpose  of  placing  the  property  to  the  benefit  of  the  estate  where 
it  belonged,  the  executors  are  estopped  to  deny  that  the  testator 
died  seized  of  an  equitable  estate  of  inheritance  in  the  premises, 
as  against  his  heirs,  devisees  or  widow  ;  nor  can  any  of  the  bene- 
ficiaries deny  the  seizin  of  the  testator,  for  the  purpose  of  dis- 
puting the  rights  of  others,  they  themselves  claiming  by  virtue 
of  such  seizin.^  So  if  a  grantee  voluntarily  destroy  or  surrender 
his  deed,  with  the  intention  of  defeating  his  own  title,  he  will  be 
estopped  from  setting  it  up  or  showing  its  contents  by  parol  evi- 
dence.^ One  who  covenants  to  give  title  to  lands  which  he 
expects  to  purchase  and  does  purchase  at  a  government  sale,  can 
not  afterwards  plead  his  own  fraud  in  obtaining  his  title  from  tlie 
government,  in  bar  of  a  decree  for  specific  performance  of  his 
agreement."  So  where  one  had  contracted  to  convey  land,  of 
which  he  had  not  the  legal  title,  to  the  pui-chaser,  free  of  incum- 
brance, and   the   land   was   conveyed   directly   from   the  person 

»  Hunt  V.  Wright,  47  N.  H.  396.  "  Howard  v.  Huffman,  3  Head,  562. 

*  Brown  v.  Pitney,  39  111.  470.  *  Fackler  v.  Ford.  21  Howard,  322. 

Vol.  I.— 47 


788  The  Law  of  Estoppel. 

holding  the  title;  previous  to  the  execution  of  tlie  deed,  a  judg- 
ment was  assigned  to  the  party  who  had  contracted  to  convey  it 
who  after  the  estate  had  been  sold  on  execution  claimed  to  have 
his  judgment  paid  out  of  the  proceeds,  which  was  refused  on  the 
ground  that  he  had  no  right  thereto/  Where  both  parties  to  a 
suit  claim  under  the  same  grantor,  each  is  bound  to  admit  that 
the  grantor's  title  was  good,  unless  he  can  show  that  he  has 
acquired  a  better  one ;  and  neither  will  be  allowed  to  set  up  his 
own  possession  or  an  outstanding  title  in  a  third  person  as  an 
answer  to  the  right  of  the  other  as  shown  on  the  face  of  the 
deed.' 

§  603.  The  rule  is  well  established  that  the  grantee  is  not 
estopped  to  deny  the  grantor's  title  ;  but  this  rule  is  not  applicable 
to  a  case  in  which  the  only  title  asserted  by  the  grantee  is  the 
precise  title  he  has  acquired  from  the  grantor,  nor  to  a  case  in 
which  both  parties  claim  from  a  common  source  and  the  title  is 
identical  in  that  source.  Thus  a  county  having  received  the  pur- 
chase money  for  a  tract  of  swamp  land,  caused  a  deed  to  be  made 
to  the  purchaser  by  the  county  commissioner.  On  the  same  day 
the  county  made  a  loan  of  school  funds,  taking  as  security  a 
mortgage  on  the  land.  Subsequently,  the  county  caused  the 
mortffifje  to  bo  foreclosed.  The  defendant  in  this  case  derived 
title  through  this  foreclosure.  Held,  that,  as  against  the  heirs  of 
the  original  purchaser,  the  defendant  was  estopped  to  deny  the 
validity  of  the  commissioner's  deed.' 

§  004.  This  seems  to  be  all  that  is  meant  by  the  broad  decla- 
ration in  such  cases,  that  a  man  who  acce])ts  or  acts  under  a  deed 
cannot  dispute  or  controvert  the  facts  which  it  recites.^     In  cases 

I  Dentler'a    Appeal,  23   Pa.  St.  505.  v.  Wurlh,  33  N.  J.  E.  82;  Saumler  v. 

^  Addison  v.  Crow,  5  Dana,  271;  Moore,  14  Busb.  97;  Tenitt  v.  Coven- 
Carver  V.  Astor,  4  Pet.  11;  Love  v.  hov^en,  79  N.  Y.  400;  Wilcoxsou  v. 
Gates,  4  Dcv.  &  B.  3G3;  Torry  v.  Osboru,  77  Mo.  G21;  Norris  v.  In.s. 
Bank,  9  Paige,  C49;  Den  v.  Johnston,  Co.,  51  Mich.  621. 
5  Jones,  72;  Ilochcll  v.  Benson,  Meigs,  "  Wiicoxon  v.  Osborn,  77  Mo.  621. 
3;  AVilkins  v.  May,  3  Head,  179;  *  Funk  v.  Newcomer.  10  Ind.  301; 
Cobuin  V.  Ilenshaw,  101  Mass.  193;  Springstein  v.  Schermerhorn,12  Johns. 
Coakley  v.  Perry,  3  Ohio  St.  314;  357;  Bank  v.  Risley,  4  Denio,  480; 
Ward  v.  Mcintosh,  12  Ohio  St.  233;  Ellis  v.  Jeans,  7  Cal.  409;  Ives  v. 
R.  R  Co.  v.  IMead,  63  Cal.  112;  Betts  Sawyer,  4  D.  &  B.  51;  Den  v.  Gates,  4 


Estoppel  by  Deed.  739 

like  tlie  one  just  cited,  the  estoppel  is  equitable  rather  than  legal, 
and  arises  where  the  deed  does  not  specifically'  recite  the  gran- 
tor's title,  and  is  so  generally  worded  that  no  technical  estoppel 
could  arise  from  its  language  consistent  with  right.  It  would  be 
too  much  to  saj  that  if  a  man  who  is  in  possession  under  a  good 
or  even  colorable  title,  buys  in  a  defective  title  in  the  hope  of 
strengthening  his  position,  he  will  thereby  defeat  his  own  object, 
and  be  estopped  from  relying  on  his  better  right  as  an  answer  to 
a  prior  deed  or  mortgage  of  the  vendor/  When  the  land  and 
title  are  transferred  at  the  same  time,  and  constitute  the  sole 
reliance  of  the  grantee,  his  right  can  rise  no  higher  than  that  of 
the  grantor,  and  is  subject  to  every  claim  that  would  have  been 
good  against  the  grantor  had  the  transfer  not  been  made.  This 
applies  in  cases  where  there  are  prior  deeds  or  mortgages.  With 
this  limitation  the  rule  is  a  beneficial  one.  Were  it  otherwise, 
the  grantor  might  keep  the  grantee  out  of  possession  of  the  veiy 
land  which  he  assumed  to  convey,  or  the  grantee  defeat  prior 
estates  or  incumbrances  created  by  the  grantor.*  There  can  be 
no  application  of  this  rule  when  either  party,  instead  of  merely 
denying  the  title  of  the  other,  claims  under  a  paramount  right 
acquired  after  the  conveyance  was  made.^  Whoever  prevents  the 
ferfoTinance  of  a  condition  cannot  take  advantage  of  it.* 

§  605.  A  claim  or  title  to  land  which  cannot  be  set  up  by  a 
person  while  in  possession,  cannot  be  set  up  by  another  person 
who  comes  into  possession  under  him."  Where  a  license  is  not 
produced,  the  executor  being  sole  legatee  in  the  will,  and  he  con- 
veys premises  by  deed  with  personal  covenants,  if  with  warranty 
against  incumbrances,  binding  himself  and  his  heirs  thereto,  no 
claim  of  creditors  intervening,  his  deed  operates  as  an  effectual 
conveyance  bv  way  of  estoppel  against  him  or  any  one  setting  up 
a  claim  of  his  against  the  estate.*  So  where  an  administrator 
conveyed  under  an  order  of  sale  a  parcel  of  land,  with  an  ease- 
ment in  an  adjoining  parcel  not  sold,  after  which  the  latter  parcel 

D.  &  B.  663;  Den  v.  Cornell,  3  Johns.  231. 

Cas.  174;  Ward  v.  Mcintosh,  12  Ohio         ^  Coakly  v.  Perry,  3  Ohio  St.  344. 

St.  233.  *  Jlerford  v.  Ambrose,  39  Me.  688; 

^  Blight  V.  Rochester,  7  Wheat.  535;  Clendennen  v.  Piiulsel,  3  Mo.  230. 
Osterhoiit  v.  Shoemaker,  3  Hill,  513.  ^  Mosely  v.  Mosely,  15  N.  Y.  334. 

»  Ward  V.   Mcintosh,  12  Ohio  St.         «  Carbree  v.  Hopkins,  41  Vt.  250. 


740  The  Law  of  Estoppel. 

was  distributed  to  him  as  licir,  he  and  his  grantees  as  privies  in 
estate  were  estopped  from  denying  that  the  easement  passed  by 
his  deed.*  A  widow  continuing  in  possession  of  hmd  is  estopped 
to  deny  the  title  derived  under  her  husband's  deeds.*  She  is 
bound  by  an  estoppel  which  binds  liim, 

'  Coe  V.  Talcott,  5  Conn.  93.  Buflferlow  v.   Newsom,    1   Dev.    208; 

'  Grandy  v.  Bailey,  13  Ired.  23i;     Gorham  v.  Brenson,  3  Dcv.  174;  Wil- 
liams V.  Beouett,  18  Ired.  221. 


Recitals.  741 


CHAPTEE  IX. 

RECITALS. 

Section  606.  In  regard  to  recitals  in  deeds,  all  parties  to  a  deed 
are  bound  by  the  recitals  therein,  which  operate  as  an  estoppel, 
working  on  the  interest  of  the  land ;  if  it  be  a  deed  of  convey- 
ance, binding  both  parties  and  privies,  privies  in  blood,  privies  in 
estate,  and  privies  in  law.  Between  such  parties  and  privies  the 
deed  or  other  matter  recited  need  not  at  any  time  be  otherwise 
proved — the  recital  of  it  in  the  subsequent  deed  being  conclu- 
sive- It  is  such  conclusive  evidence  that  it  cannot  be  averred 
against,  and  which  forms  a  muniment  of  title.  A  recital  of  one 
deed  in  another  binds  the  parties  and  those  who  claim  under 
them.  It  does  not,  however,  bind  strangers  who  claim  by  title 
paramount  to  the  deed,  or  persons  claiming  by  an  adverse  title, 
or  persons  claiming  from  the  parties  by  title  anterior  to  the  date 
of  the  reciting  deed.'     It  cannot  operate  on  one  who  is  neither 

1  Kimbro  v.  Hamilton,  2  Swan,  190;  B.  731;  Carpenter  v.  Buller,  8  M.  & 

Slumph   V.   Osterhage,    94    111.    115;  W.  209;   Bowman   v.  Taylor,  2   A.  & 

State  V.  Williams,  77  Mo.  463;   Jones  E.  278;  Young  v.  Raincock,  7  C.  B. 

V.  Reese,  65  Ala.  134;  Marchioness  of  310;  Cutter  v   Dickinson,  8  Pick.  386; 

Ananuaie  v.  Harris,  2  P.  Wms.  432;  Bunco    v.   U.    S.,    17    Howard,   437; 

Shelly  V.  Wright,  Whiles,  9;  Ford  v.  Hovey  v.    Woodward,   33    Me.   470; 

Gray,    1    Salk.  285;   Ford  v.  Gray,  6  Farrar  v.  Cooper,  34  Me.  394;  Doane 

Mod.  44; Trevibanv.  Lawrence,  ISalk.  v.    Wilcut,    16   Gray,    368:   Peters  v. 

276;   Wheeler  v.    Raymond,  6  T.  R.  Clements,  46  Tex.  114;  Brush  v.  Ware, 

171;  Helps  v.  Hereford,  2  B.  &  Aid.  15  Pel.  93;  Scott  v.  Douglas,  7  Ohio, 

243.  Com.  Dig.  Estoppel,  B.  &  E.  10;  228;   Cordova   v.    Hood,    7    Wall.    1; 

Co.    Litt.    352  a.;   Den  v.  Cornell,   3  Fisk    v.    Flores,    43    Tex.  340;    Mc- 

Johns.  Cas.  174;   Penrose  v.  Griflin,  4  Chesney   v.    Wainright,  5   Ohio,  452; 

Binn.  231;  Garwood  v.  Dennis,  4  Binn.  Iniskeep  v.  Shields.  4  Harr.  345;  Stew- 

314;  Brigham  v.  Rogers,  17  Mass.  571;  art  v.  Butler,  2  S.  &  R.  381;  Brecken- 

West  V.  Pine,  4  Wash.   C.  C.  II  691;  ridge  v.  Ormsby,  1  J.  J.  Marsh.  236; 

Carver  v.  Astor,  4  Pet.  11;  Crane  v.  Byrne  v.  Morehouse,  22  111.  603;  Tor- 

Moiais,    6    Pet.    598;    Whittaker    v.  rey  v.  Bank,  9  Paige,  689 ;  Wade's  Suc- 

Garnett,  3  Bash,  402;  Lamar  V.  Turner,  cessi'on,  21  La.  Ann.  243;  Jackson  v. 

^8  Ga.  329;  Stronghill  v.  Buck,  14  Q.  Parkhurst,  9  Wend.  209. 


745  The  Law  of  Estoppel. 

a  party  or  privy  to  it."  The  recitals  of  a  deed  estop  only  par- 
ties and  privies.  Tlie  recitals  in  a  deed  by  which  a'  married 
woman  pnrports  to  convey  her  title  to  land,  do  not  estop  her,  nor 
those  claiming  under,  from  asserting  the  truth  against  the  recit- 
als. Mutuality  is  a  necessary  ingredient  of  estoppels.  There 
can  be  no  estoppel  upon  one  party  unless  the  other  is  equally 
estopped.*  For  example,  where  a  married  woman  gave  a  mort- 
gage upon  her  separate  estate  to  secure  a  note  made  by  her  hus- 
band, and  the  mortgage  recited  that  the  debt  for  which  the  note 
was  given  was  contracted  for  the  benefit  of  the  wife  and  family. 
Meld^  that  the  wife  was  not  estopped  by  this  recital  from  show- 
ing that  the  same  was  untrue,  and  that  the  debt  was  wholly  her 
husband's  debt.'  So,  where  the  wufe  unites  with  the  husband  in 
the  execution  of  a  mortgage,  or  a  deed  which  becomes  by  agree- 
ment an  equitable  mortgage,  to  secure  a  debt  by  the  husband  to 
his  indorser,  the  latter  is  not  estopped,  by  accepting  the  deed, 
from  denying  title  in  the  wife  to  the  mortgaged  land.* 

§  607.  General  words  do  not  estop,  and  the  mere  fact  of 
assuming  to  convey  land,  by  bargain  and  sale,  or  lease  and  release, 
will  not  estop  the  grantor  from  showing  that  he  had  nothing  in 
the  land  at  the  time  on  which  the  deed  could  operate.  The 
estoppel  applies  where  the  instrument  contains  a  definite  and  par- 
ticular recital.*  In  order  to  have  the  effect  and  operation  accorded 

1  Miller  v.  Holman,  1  Grant's  Cas.  Bardiie,  1  Mod.  113;  Salter  v.  Kidley, 
293.  1  Show.  59;  Lainson  v.  Tremere,  3  N. 

-  Hempstead  v.  Easton,  33  Mo.  142;  &  N.  603;  Bowman  v.  Taylor,  2  A.  & 

Scliuman    v.    Garratt,    16    Cal.   100;  E.   278;  Carpenter  v.  Buller,  8  M.  & 

Longwcll   V.    Bently,  3  Grant   Cases,  W.  209;  Edwards  v.  Brown,  3  Y.  & 

177;  Towsley  v.  Johnson,  1   Neb.  95;  J.    423;   Shelly   v.  Wright,  Willes,  9; 

Lamar  v.  xiarner,  48  Ga.  329;   Miller  Young    v.    Raincock,    7    C.    B.    310; 

V.  Holman,  1  Grant's  ('as.  243;  Deery  Bower  v.  McCormick,  28  Gratt.  310; 

V.   Crary,  5   Wall.    795;    Nutwell    v.  Horton  v.  Commissioners,  7  Exchq. 

Tongwe,    22    Md.    419:    Williams    v.  780;  Hill   v.  Water  Work.s,  2  B.  &  A. 

Chandler,  25  Tex.  4.  544;   McDonald   v.   Lusk,  9   La.  654; 

2  Dunbar  v.  Mize,  53  Ga.  435.  Webb  v.  Commissioners,  L.  R.  5  Q. 

4  Sumner  v.  Bryan,  54  Ga.  613;  B.  642;  Ry.  Co.  v.  Hawks,  5  H.  L.  C. 
McGeary's  Appeal,  72  Pa.  St.  365.  372;  Hunt  v.  Board,  L.  R.  4  C.  P.  D. 

5  Right  V.  Bucknell,  3  B.  &  Ad.  278;  48;  Fishmongers'  Co.  v.  Robertson,  5 
Sparrow  v.  Kingman,  1  N;  Y.  242;  M.  &  G.  192;  Miners  v.  Fox,  IC  Q.  B. 
Kepp  V.  Wiggott,  10  C.  B.  35;  Strowd  229;  Boileau  v.  Rutlin,  2  Exchq.  665; 
V.  Willi.s,  ICro.  Eliz.  3C2;Backwellv.  Willouglibv   v.   Brook,  2   Cro.  Eliz. 


Recitals.  743 

to  estoppels,  it  is  not  necessary  that  thej  must  he  mutual,  while 
mutuality  is  a  necessary  ingredient  of  an  estoppel.  The  exist- 
ence of  an  estoppel  to  one  will  not  be  a  reason  for  inferring  that 
it  extends  to  another,  unless  the  language  of  the  recital  or  the 
nature  of  the  fact  which  it  sets  forth  is  such  as  to  justify  the 
belief  that  it  was  intended  to  serve  as  the  basis  of  the  whole  con- 
tract, which  none  of  the  contracting  parties  should  be  at  liberty 
to  gainsay.'  A  specific  recital  will  conclude  the  parties,  if  it 
does  not  bind  the  estate  in  the  land.  Where  a  conveyance  sets 
forth  the  facts  necessarj'  to  render  it  valid,  it  is  conclusive  against 
the  grantor,  whatever  may  be  its  effect  as  between  the  grantee 
and  third  persons.  The  question  of  recitals  in  conveyances  as 
evidence  and  of  estoppels,  often  arise  in  the  trial  of  actions  of 
ejectment. 

§  608.  The  conclusive  effect  of  recitals  in  deeds,  is  restricted 
to  the  recital  of  things  in  particular,  as  being  in  existence  at  the 
time  of  the  execution  of  the  deed  ;  and  does  not  extend  to  the 
mention  of  things  in  general  terms.  Therefore,  if  one  bound 
in  a  bond,  conditioned  to  perform  the  covenants  in  a  certain  inden- 
ture, or  to  pay  the  money  mentioned  in  a  certain  recognizance, 
he  shall  not  be  permitted  to  say  there  was  no  such  indenture  or 
recognizance.  But  if  the  bond  be  conditioned,  that  the  obligor 
shall  perform  all  the  agreements  set  down  by  A.,  or  carry  away 
all  the  marl  in  a  certain  close,  he  is  not  estopped  by  this  general 
condition  from  saying,  that  no  agreement  was  set  down  by  A.,  or 
that  there  was  no  marl  in  the  close.  Neither  does  this  doctrine 
apply  to  that  which  is  mere  description  in  the  deed,  and  not  an 
essential  averment — such  as  the  quantity  of  land  ;  its  nature, 
whether  arable  or  meadow  ;  the  number  of  tons  in  a  vessel  char- 
tered by  the  ton,  or  the  like  ;  for  these  are  but  incidental  and 
collateral  to  the  principal  thing,  and  maybe  supposed  not  to  have 

756;  Hart  v.   Buckminster,    Aleyn's  Young    v.   Raincock,   7    C.    B,    781; 

Rep.  52;  Rainsford  v.    Smith,  Dyer,  AYiles  v.    Woodward,  5  Exchq.  557; 

190;  Hayne  v.  Maltliy,  3  T.  R.  438;  Hills  v.  Lanning,  !)  Exchq.  256;  Carter 

Oldham  v.   Langmead,  3  T.  R.  439;  v.  Carter,  3  K.  &  J.  645;   Ry.  Co.  v. 

Doe  V.  Musgrave,  1  M.  &  G.  625.  Warton,  6  H.  &  N.  520;  Morgan,  in 

'  Stroughill  V.  Buck,  14  Q.  B.  781 ;  re,  L.  R.  2  Ch.  D.    72;  Crackuall  v. 

Bowman  v.  Taylor,  2  Ad.  &  E.  278;  Janson,  L.  R.  11  Ch.  D.  1;  Burnand 

V.  Rodocauachi,  L.  R.  7  App.  335. 


744  The  Law  of  Estoppel. 

received  the  deliberate  attention  of  the  parties.  In  England,  the 
recital  of  the  payment  of  the  consideration  money  in  the  deed, 
is  regarded  as  conclnsive,  and  binding  the  parties  bj  estoppel.' 

§  609.  The  law  in  regard  to  recitals  is  fully  and  ably  expounded," 
by  the  Supreme  Court  of  the  United  States.  Mr.  Justice  Story, 
delivering  the  opinion,  who,  after  stating  the  general  principles 
above  mentioned,  says,  "  Sucli  is  the  general  rule.  But  tliere  are 
cases  in  which  such  a  recital  may  be  used  as  evidence  even  against 
strangers;  if, for  instance,  there  be  the  recital  of  a  lease  in  a  deed 
of  release,  and  in  a  suit  against  a  stranger,  the  title  under  the 
release  comes  in  question,  there  the  recital  of  the  lease  in  such  a 
release  is  not  per  se  evidence  of  the  existence  of  the  lease.  But 
if  the  existeuce  and  loss  of  tJie  lease  be  established  by  other  evi- 
dence, there  the  recital  is  admissible  as  secondary  proof,  in  the 
absence  of  more  perfect  evidence,  to  establish  the  contents  of  the 
lease  ;  and  if  the  transaction  be  an  ancient  one,  and  the  posses- 
sion has  been  long  held  under  such  release,  and  is  not  otherwise 
to  be  accounted  for,  there  the  recital  will  of  itself,  under  such 
circumstances,  materially  fortify  the  presumption,  from  lapse  of 
time  and  length  of  possession  of  the  original  existence  of  tlie 
lease.  Leases,  like  other  deeds  and  grants,  may  be  presumed  from 
long  possession,  which  cannot  otherwise  be  explained  ;  and  under 
such  circumstances,  a  recital  of  the  fact  of  such  a  lease  in  an  old 
deed,  is  certainl}-  far  stronger  presumptive  proof  in  favor  of  such 
possession  under  title,  than  the  naked  presumption  arising  from  a 
mere  unexplained  possession.  Such  is  the  general  result  of  the 
doctrine  to  be  found  in  the  best  elementary  writers  on  the  sub- 
ject of  evidence.  It  may  however  be  important  to  examine  a 
few  of  the  authorities  in  support  of  the  doctrine  on  which  we 
rely.  The  cases  of  Maichioness  of  Anuandale  v.  Harris,  and 
Shelly  V.  Wi-ight,'  are  sufiiciently  direct  as  to  the  operation  of 
recitals  by  way  of  estoppel  between  the  parties.  In  Ford  v.  Gray,* 
one  of  the  points  ruled  was,  "  that  a  recital  of  a  lease  in  a  deed 
of  release  is  good  evidence  of  such  lease  againt  the  releasor,  and 

'  Downs  V.  Cooper,  2  Ad.  &E,  253;         '  Marchioness  of  Annandale  v.  Har 
Doe  V.  Payne,  1  Ad.  &  E.  538.  ris,  2  P.  Wms.  432;  Shelly  v.  Wright, 

*  Carver  v.   Jackson,  4  Peters,  11.      Willes,  9. 

*  Ford  V.  Gray.  1  Salk.  285. 


Recitals.  745 

those  who  claim  under  him  ;  but  as  to  others,  it  is  not  without 
proving  that  there  was  such  a  deed,  and  it  was  lost  or  destroyed. 
The  same  case  is  reported  in  6  Mod.  44,  where  it  is  said  that  it 
was  ruled,  '  that  the  recital  of  a  lease  in  a  deed  of  release  is  good 
evidence  against  one  releasor  and  those  that  claim  under  him.  It 
is  then  stated,  that '  a  fine  was  produced,  but  no  deed  declaring 
the  uses,  but  a  deed  was  offered  in  evidence  which  did  recite  a 
deed  of  limitation  of  the  uses,  and  the  question  was,  whether  that 
(recital)  was  evidence ;  and  the  court  said  that  the  bare  recital 
was  not  evidence  ;  but  that  if  it  could  not  be  proved  that  such  a 
deed  had  been  and  lost,  it  would  do  if  it  were  recited  in  another. 
This  was  doubtless  the  same  point  asserted  in  the  latter  clause  of 
the  report  in  Salkeld  ;  and,  thus  explained,  it  is  perfectly  con- 
sistent with  the  statement  in  Salkeld,  and  must  be  referred 
to  a  case  where  the  recital  was  offered  as  evidence  against  a 
stranger.  In  any  other  point  of  view,  it  would  be  inconsistent 
with  the  preceding  propositions,  as  with  the  cases  in  2  P.  Williams 
and  Willes." 

§  610.  "  In  Treviban  v.  Lawrence,'  the  court  held  that  the 
parties,  and  all  claiming  under  them,  were  estopped  from  assert- 
ing that  a  judgment  sued  against  the  party  as  of  Trinity  term, 
was  not  of  that  term,  but  of  another  term  ;  that  very  point  having 
arisen  and  been  decided  against  a  party  upon  a  scire  facias  on 
the  judgment.  But  the  court  there  held  (what  is  very  particular 
to  the  present  purpose)  that  if  a  man  makes  a  lease  by  indenture 
of  D.  in  which  he  hath  nothing,  and  afterwards  purchases  D.  in 
fee,  and  afterwards  bargains  and  sells  it  to  A.  and  his  heirs,  A. 
shall  be  bound  by  the  estoppel ;  and,  that  where  an  estoppel 
works  on  the  interest  of  the  lands,  it  runs  with  the  land  into 
whose  hands  soever  the  land  comes;  and  an  ejectment  is  main- 
tainable upon  the  mere  estoppel.  This  decision  is  important  in 
several  respects.  In  the  first  place,  it  shows  that  an  estoppel  may 
arise  by  implication  from  a  grant,  that  the  party  hath  an  estate 
in  the  land,  which  he  may  convey,  and  he  shall  be  estopped  to 
deny  it.  In  the  next  place,  it  shows  that  such  estoppel  binds  all 
persons  claiming  the  same  land,  not  only  under  the  same  deed, 
but  under  any  subsequent  conveyance  from  the  same  party  ;  that 

■  Treviban  v.  Lawrence,  1  Salk,  276. 


746  The   Law  of  Estoppel 

is  to  say,  it  binds  not  merely  privies  in  blood,  but  privies  in 
estate,  as  subsequent  grantees  and  alienees.  In  tlie  next  place  it 
shows  that  an  estoppel,  which  (as  the  phrase  is)  works  on  the 
intei-est  of  the  land,  runs  with  it  into  whosoever  hands  the  land 
comes.  The  same  doctrine  is  recognized  by  Lord  Chief  Baron 
Comyns.'  In  the  latter  place  (E.  10)  he  puts  the  case  more 
strongly  ;  for  ho  asserts  that  the  estoppel  binds,  even  though  all 
the  facts  are  found  in  a  special  verdict.  But,  says  he,  and  he 
relies  on  his  own  authority,  where  an  estoppel  binds  the  estate 
and  converts  it  to  an  interest,  the  court  will  adjudge  accordingly, 
as  if  A.  leases  lands  to  B.  for  six  years,  in  which  he  has  nothing, 
and  then  purchases  a  lease  of  the  same  land  for  twenty-one  years, 
and  afterwards  leases  to  C.  for  ten  years,  and  all  this  is  found  by 
verdict.  The  court  will  adjudge  the  lease  to  B.,  good  though  it 
be  so  only  by  conclusion.  A  doctrine  similar  in  principle  was 
asserted  in  this  court."  The  distinction,  then,  which  was  urged 
at  the  bav,  that  an  estoppel  of  this  suit  binds  those  claiming  under 
the  same  deed,  but  not  those  claiming  by  a  subsequent  deed  under 
the  same  party,  is  not  well  founded.  All  privies  in  estate  by  a 
subsequent  deed  are  bound  in  the  same  manner  as  privies  in 
blood  ;  and  so,  indeed,  is  the  doctrine  of  Comyn's  Digest.'  We 
may  now  pass  to  a  short  review  of  some  of  the  American  cases  on 
this  subject.  Denn  v.  Cornell,^  is  strongly  in  point.  There,  Lieu- 
tenant-Governor Golden,  in  1775,  made  his  will,  and  in  it  recited 
that  he  had  conve3'ed  to  his  son  David,  his  lands  in  the  township 
of  Flushing,  and  he  then  devised  his  other  estate  to  his  sons  and 
daughters,  &c..,  &c.  Afterwards,  David's  estate  was  confiscated 
under  the  act  of  attainder,  and  the  defendant  in  ejectment 
claimed  under  that  confiscation,  and  deduced  his  title  from  the 
estate.  No  deed  of  the  Flushing  estate  (the  land  in  controversy) 
was  proved  from  the  father,  and  the  heir  at  law  sought  to  recover 
on  that  ground.  But  the  court  held  that  the  recital  in  the  will, 
that  the  testator  had  conveyed  the  estate  to  David,  was  an  estop- 
pel of  the  heir  to  deny  that  fact,  and  bound  the  estate.  In  this 
case,  the  estoppel  was  set  up  by  the  tenant  claiming  under  the 
State,  as  an  estoppel  running  with  the  land. 


■  Digest,  Estoppel,  B.  &  E.  10.  ^  Com.  Dig.  Est.  B.  Co.;  Lit.  353,  A. 

»  Terrettv.  Taylor,  9  Craacb,  52.  "  3  Johns.  Cas.  174. 


Recitals'.  747 

§  611.  '*  If  the  State  or  its  grantee  might  set  up  the  estoppel 
in  favor  of  their  title,  tlien,  as  estoppels  are  reciprocal,  and  bind 
both  parties,  it  might  have  been  set  np  against  the  State  or  its 
grantee.  It  has  been  said  at  bar,  that  the  State  is  not  bound  by 
estoppel  by  any  recital  in  a  deed.  That  may  be  so  where  the 
recital  is  in  its  own  grants  or  patents,  for  they  are  deemed  to  be 
made  upon  the  suggestion  of  the  grantee.  But  where  the  State 
claims  title  under  the  deed,  or  other  solemn  acts  of  third  persons, 
it  takes  it  cum  onere,  and  subject  to  all  estoppels  running  with 
the  title  and  estate,  in  the  same  way  as  other  privies  in  estate. 
In  Penrose  v.  GriflSth,'  it  was  held  that  recitals  in  a  patent  of  the 
Commonwealth  were  evidence  against  it,  but  not  against  persons 
claiming  by  title  paramount  from  the  Commonwealth,  The 
court  there  said,  that  the  rule  of  law  is,  that  a  deed  containing  a 
recital  of  another  deed  is  evidence  of  the  recited  deed  against  the 
grantor,  and  all  persons  claiming  by  title  derived  from  him  sub- 
sequently. The  reason  of  the  rule  is,  that  the  recital  amounts  to 
the  confession  of  the  party  ;  and  that  confession  is  evidence 
against  himself,  and  those  who  stand  in  his  place.  But  such 
confession  can  be  no  evidence  against  strangers.  The  same  doc- 
trine was  acted  upon  and  confirmed  by  the  same  court  in  Gar- 
wood V.  Dennis.*  In  that  case,  the  court  further  held,  that  a 
recital  in  another  deed  was  evidence  against  strangers,  where  the 
deed  was  ancient  and  the  possession  was  consistent  with  the  deed. 
The  case  also  had  the  peculiarity  belonging  to  the  present,  that 
the  possession  was  of  a  middle  nature,  that  is,  it  might  not  have 
been  solely  in  consequence  of  the  deed,  for  the  party  had  another 
title;  but  there  never  was  any  possession  against  it.  There  was 
a  double  title,  and  the  question  was,  to  which  the  possession 
might  be  attributable.  The  court  thought  that  a  suitable  founda- 
tion of  tlie  original  existence  and  loss  of  the  recited  deed  being 
laid  in  tlie  evidence,  the  recital  in  the  deed  was  good  corrobora- 
tive evidence,  even  against  strangers.  And  other  authorities 
certainly  warrant  this  decision." 

§  612.  The  law  in  regard  to  the  effect  of  recitals  and  admis- 
sions in  deeds  seems  to  be  well  settled  that  as  to  an  admission  of 
a  fact,  if  made   for  the   purpose  of   influencing  the  conduct,  or 

'  Penrose  v.  Griflath,  4  Binn.  231.  "^  Garwood  v.  Dennis,  4  Binn.  314. 


748  The  Law  op  Estoppel. 

deriving  a  benefit  from  another;  so  that  to  deny  it  would  be  a 
breach  of  good  faith  ;  the  law  enforces  the  rule  of  good  morals 
as  a  rule  of  policy,  and  estops  the  party  from  repudiating  his 
representations,  or  denying  the  truth  of  his  admissions.'  Thus 
where  one  made  a  deed  of  land  belonging  to  a  corporation,  in 
which  he  described  himself  as  agent  and  duly  authorized  to  con- 
vey, &c.,  althougii  it  was  false,  he  subsequently  sued  and  recov- 
ered a  judgment  against  the  company,  and  then  brought  his 
action  to  recover  the  land  from  the  grantee  under  the  deed  which 
he  had  executed  as  agent,  he  was  estopped  to  deny  that  he  was 
the  authorized  agent,  and  all  persons  claiming  through  or  under 
him  were  equally  estopped.*  So  where  S..  a  president  of  a  rail- 
road company,  made  a  deed  for  the  company  to  certain  lands.  At 
the  same  time  C.  gave  an  instrument  in  writing  to  the  purchaser, 
in  which  it  was  recited  that  the  railroad  company  had  made  such 
a  deed.  Held,  that  this  recital  estopped  C,  and  those  holding 
under  him  with  a  knowledge  of  the  facts,  from  denying  that  S. 
was  authorized  by  the  company  to  make  the  deed.'  So  where  a 
husband  entered  on  land  as  that  of  his  wife,  and*  held  the  same 
as  tenant  by  curtesy,  and  her  heirs  conveyed  the  reversion  to  a 
third  party,  who  brought  waste  against  the  husband,  he  was 
estopped  to  assert  that  his  wife's  title  was  defective,  or  to  set  up 
a  title  by  disseisin  against  that  under  which  he  entered.*  So 
where  land  originally  belonging  to  A.  became,  as  was  assumed, 
the  property  of  B.  by  conveyance,  who  gave  A.  a  power  of  attor- 
ney to  conve}'  any  land  then  belonging  to  B.,  and  A.,  under  that 
power,  and  as  attorney  of  B.,  conveyed  the  land  in  question  to 
the  tenant,  the  heirs  of  A.,  after  his  death,  were  estopped  by  this 
sale  to  set  up  a  claim  to  the  land,  on  the  ground  that  when  A. 
made  the  deed  as  B.'s  attorney,  B.  was  not  the  owner  of  the  land, 
but  that  the  same,  in  fact,  belonged  to  A.  The  attorney  in  such 
a  case  is  estopped  to  dispute  the  title  of  his  principal,  for  whom 
he  acts." 

§  613.  There  is,  however,  a  marked  distinction  between  gen 


'Douglass  V.   Scott,   5  Ohio,  194;  'Simpson  v.   Greely,   8  Kan.  584 

Rawlc  on  Gov.  407.  *  Morgan    v.    Lamed,    10  Met.  50, 

»  Stow  V.  Wyse,  7  Conn.  220;  Lee  v.  Rich  v.  Atwater,  16  Conn.  415. 

Getty,  26  111.  76.  'Harney  v.  Morton,  36  Miss.  411. 


Recitals.  749 

eral  recitals  in  a  deed,  and  the  recital  of  a  particular  fact ;  the 
former,  as  a  general  thing,  does  not  conclude  a  party,  while  the 
latter  works  an  estoppel.*  One  who  has  made  a  deed  or  grant 
with  covenants  of  warranty,  is  estopped  to  show  that  he  merely 
acted  for  the  grantee,  in  acquiring  and  passing  the  estate,  on  the 
ground  that  it  would  permit  him  directly  to  contradict  his  deed.^ 
Where  a  plaintiff  claimed  under  a  mortgage  from  the  mortgagor, 
the  defendant  was  the  mother  of  the  mortgagor,  and  claimed  a 
life  estate  under  the  will  of  her  husband  and  the  mortgagors 
father,  the  mortgagor  himself  being  one  of  the  devisees  of  the 
same  land.  The  husband  held  a  contract  for  the  land  from  the 
city  when  he  died,  but  no  deed  had  been  delivered,  and  after  his 
death  the  city  made  a  deed  to  his  widow  and  devisees,  and  mider 
this  deed  the  mortgagor  claimed  his  title.  In  this  deed  of  the 
city,  it  was  recited  in  the  hahendum^  to  hold,  &c.,  "in  the  man- 
ner mentioned  in  the  said  last  will  and  testament  of  (the  father 
of  the  mortgagor)  deceased."  It  was  held  that  the  mortgagees 
claiming  under  the  mortgagor,  were  estopped  by  the  recital  in 
liis  deed  from  the  city,  and  could  not  claim  adversely  to  the 
widow.^  When  a  deed  recites  the  existence  of  facts  which  ren- 
der it  valid  unless  contradicted,  the  recital  may  take  effect  as  an 
estoppel,  and  thus  have  the  effect  of  sustaining  the  conveyance 
as  between  the  parties  and  those  claiming  under  them  as  heirs. 
A  recital  in  a  subsequent  deed,  referring  to  and  describing  a 
voidable  deed  in  a  manner  to  evince  acquiescence  in  it,  is  a  valid 
and  irrevocable  confirmation,  and  all  claiming  under  the  party 
confirming  such  deed  are  estopped  from  denying  its  confirma- 
tion.* 

§  613.  A  recital  in  a  deed  of  the  existence  of  a  mortgage 
upon  the  premises,  and  that  the  grantee  is  to  pay  the  debt,  is 
conclusive  evidence  against  the  grantee  of  the  execution  of  the 

'Huntington  v.   Havens,,.  5   Johns.  »  j.^^kson   v.    Ireland,  3  Wend.  99; 

Ch.    23;    Co.   Lit.  852.  b  ;  Shelley  v.  Tartar  v.  Hall,  3  Cal.  263.      The  rale 

Wright,  Willes,    9;  Norton  v.  Saimd-  does    not    extend    to   that  which    is 

ers,  7  J.  J.  Marsh.  12;  Hays  V.  Askew,  merely   descriptive,    or   an   averment 

5  Jones  Law,   63;  Salter  v.  Kidley,  1  which  is  not    essential.     Osborne   v. 

Show.  59;  McDonald   v.  Lusk,  9  La.  Endicott,  G  Cal.  149. 

604.  *  Breckenridge  v.   Ormsby,  1  J.  J. 

»  Eveleth  v.  Crouch,    15  Mass.  307.  Marsh.    236. 


750 


The  Law  of  Estoppel. 


mortgage'  So  a  party  claiming  under  a  deed  which  recited  tlie 
existence  of  a  mortgage  is  estopped  from  denying  that  there  is 
such  a  mortgage. '  A  person  who  accepts  a  lien  upon  or  interest 
in  mortgaged  premises  can  neither  question  the  consideration  nor 
the  validity  of  such  mortgage ;  if  he  accept  a  deed  of  the  prem- 
ises or  a  mortgage  thereon  in  which  there  is  a  recital  that  such 
instrument  is  subject  to  a  prior  mortgage  for  a  certain  specified 
sum,  and  such  party  deducts  said  sum  from  the  consideration 
paid  for  the  property  to  his  grantor,  he  thereby  establishes  the 
validity  of  said  mortgage,  and  cannot  in  an  action  for  foreclosure 
question  its  validity.'  So,  a  recital  in  a  deed  that  a  mortgage 
exists  does  not  estop  the  grantee  from  relying  upon  a  defense  to 
its  validity,  that  there  is  only  one  witness  to  its  execution,  or  that 
part  of  the  amount 'lias  been  paid.^  A  grantee  who  accepts  a 
conveyance  reciting  a  prior  lease  or  mortgage,  is  not  allowed  to 
impeach  the  title  of  the  lessor  or  mortgagor,  on  any  ground  that 
would  iiave  been  open  to  the  grantor,  unless  it  can  be  shown  that 
there  is  not  a  better  title,  but  that  it  is  vested  by  conveyance  or 
descent  in  him.^  So  a  grantee  of  land  recognizing  and  assuming 
payment  of  a  mortgage  lien  as  part  of  the  purchase  pi'ice,  is 
estopped  to  set  up  as  a  defense  to   the   mortgagor's  suit  of  fore- 


'  Cane  v.  Ingalls,  18  N.  H.  613. 

*  Holmes  v.  Ferguson,  1  Oregon, 
220. 

=*  Miller  v.  Winchell,  70  N.  Y.  437; 
Graves  v.  Mumford,  26  Barb.  94; 
Sands  v.  Church,  6  N.  Y.  347;  Free- 
man V.  Auld,  44  N.  Y.  50;  Barnes  v. 
Mott,  64  N.  Y.  397;  Kussell  v.  Pastor, 
7N.  Y.  171;  Hartle}'-  v.  Harrison,  24 
N.  Y.  170;  Hitter  v.  Phillips,  53  N. 
Y.  586;  liicard  v.  Sanderson,  41  N. 
Y.  l79;Hardigreev.  Mitchum,  51  Ala. 
151;  Major  v.  Bulkiey,  51  Mo.  227; 
Kennedy  V.  Brown,  61  Ala.  296;  Law- 
rence V.  Fox,  20  N.  Y.  268;  Green  v. 
Kemp,  13  Mi.ss.  515;  .Jackson  v. 
Thompson,  6  Cowen,  178;  Lee  v. 
Clark,  1  Hill,  50;  Bank  v.  Martin,  1 
Met.  .294;  Holmes  v.  Ferguson,  1 
Oreg.  220;   Cram  v.  Ingalls,  18  N.  H. 


613;  Halle  v.  Nichols,  16  Hun,  37; 
Root  V.  Wright,  21  Hun,  534;  Good- 
win V.  Kency,  49  Conn.  503;  Hall  v. 
Ashby,  2  Montana,  489;  Howard  v. 
Chase,  104  Mass.  249;  .Johnson  v. 
Thompson,  129  Mass.  398;  Tuite  v. 
Si  evens,  98  ]\Iass.  305;  Cooper  v.  Big- 
ley,  13  Mich  463;  Porter  v.  Parmley, 
52  is.  Y.  185;  Cramer  v.  Lepper,  26 
Ohio  St.  59;  S.  C,  20  Am.  R.  756; 
Parkinson  v.  Sherman,  74  N.  Y.  88; 
S.  C,  30  Am.  K.  268. 

*  Thompson  v.  Moigaii,  6  Minn 
292;  Briggs  v.  Seymour,  17  Wis.  255 
Loan  &  T.  Co.  v.  Bank,  15  Wis.  424 
Machine  Co.  v.  Emerson,  115  Mass 
554;  Hartley  v.  Tatham,  2  Iveyes,  122; 
Williams  v.  Thurlow,  31  Me.  392. 

'  Addison  v.  Crow,  3  Dana,  271; 
Ward  V.  Mcintosh,  12  Ohio  St.  231; 
Coakley  v.  Perry,  3  Ohio  St.  344. 


Recitals.  751 

• 

closure  of  the  mortgage,  the  omission  of  the  mortgagor  and  wife 
therein  to  release  the  homestead.'  So,  where  there  is  a  recital 
in  a  deed  of  a  material  fact,  as  that  due  notice  had  been  given 
under  a  power,  it  estops  the  grantor  from  denying  the  existence 
of  that  fact/  So,  an  executor  is  estopped  from  denying  the  recitals 
of  a  deed  made  by  him,  as  to  his  having  taken  the  oath  of  office 
and  received  letters  testamentary/  A  recital  of  title  in  a  deed 
is  binding  upon  the  grantor.  But  a  recital  in  a  conveyance  under 
which  a  party  claims,  cannot  estop  the  grantor  from  claiming 
under  an  older  conveyance  or  a  paramount  title.^  A  grantor  is 
estopped  by  his  deed  from  denying  that  he  had  any  title  in  the. 
thing  granted.  But  where  a  grantor  is  acting  officially  as  a  pub- 
lic agent  or  trustee  the  estoppel  does  not  apply. 

§  614.  While  a  delivery  is  essential  to  the  perfection  or  com- 
pletion of  a  gift,  a  recital,  under  seal,  that  the  thing  given  was 
delivered,  will  estop  the  donee  and  those  claiming  under  him 
from  disputing  the  title  of  the  donee  on  the  ground  that  posses- 
sion did  not  accompany  the  deed/  A¥here  tenants  in  common 
join  in  a  deed,  each  is  only  bound  to  see  that  his  own  title  is 
recited  correctly,  and  they  will  not  be  estopped  from  showing  any 
error  or  mis-take  that  may  have  been  committed  in  setting  up  the 
title  of  the  others. °  Ordinarily,  a  seal  is  requisite  to  give  rise  to 
the  presumption  that  a  recital  or  stipulation  is  intended  to  be 
conclusive,  and  estop  the  parties  from  contradicting  it  in  plead- 
ing or  in  evidence.'  But  when  a  fact  is  specilically  set  forth  by 
one  of  the  parties  to  a  simple  contract,  and  constitutes  the  cause 
or  inducement  upon  which  the  other  relies,  the  former  will  not 
be  permitted  to  controvert  it,  after  the  contract  has  been  Avholly 
or  partially  performed  by  the  latter,  or  whei-e  no  adequate  com- 
pensation can  be  made  for  the  resulting  injury.  The  estoppel  in 
such  a  case  is  equitable  rather  than  a  legal  one,  and  cannot  ordi- 
narily arise,  unless  the  party  who  relies  upon'^it  was  ignorant  of 

'  PidgeoD  V.  Trustees,  44  111.  501.         son  v.  Carver,   4  Pet.  11;  Baldwin  v. 

*  Simson  v.    Eckstein,  22  Cal.  580;     Thompson,  15  Iowa,  504. 
Buchanan  v.  Kimes,  58  Tenn.  275.  *  Newell  v.  Newell,   34  Miss.  385; 

^  Larco  v.    Cassanuevma,    30    Cal.      Comstock  v.  Smith,  26  Mich.  306. 
560.  «  Sunderlein  v.  Struthers,  47  Pa.  St. 

*  Cane  v.  Morris,  6  Pet.  598;  Jack-      411. 

■>  Davis  V.  Tyler,  18  Johns.  490. 


752  The  Law  of  Estoppel. 

the  trntli  and  deceived  by  the  false  or  erroneous  allegation.' 
Where  the  lesseeof  a  town  lot,  having  erected  a  building  thereon, 
supported  by  posts  set  in  the  ground,  under  a  provision  in  the 
lease  that  he  might  remove  all  buildings  at  the  end  of  the  term, 
makes  a  chattel  mortgage  upon  said  building  describing  it  as  per- 
sonal property,  both  lie  and  all  persons  claiming  under  him,  will 
be  estopped  from  denying  that  such  building  is  personal  prop- 
erty, as  against  all  persons  claiming  under  said  mortgage.' 

§  615.  When  both  parties  claim  under  the  same  grantor,  the 
covenants  or  recitals  in  the  deeds  constituting  the  chain  of  title 
under  which  each  holds,  will,  so  far  as  they  enter  into  and  qualify 
the  grant,  be  evidence  for  or  against  the  other  that  cannot  be 
contradicted  as  long  as  the  grantor's  title  is  the  only  one  in  ques- 
tion and  no  estate  has  been  derived  from  any  other  source.  The 
recital  of  a  particular  fact  affecting  the  title  conveyed  by  a  deed 
is  confessedly  conclusive  on  all  who  derive  title  subsequently  from 
the  grantor.'  In  an  action  of  trespass  to  try  title,  the  defendant 
showing  no  legal  or  equitable  title  in  himself,  but  relying  on  the 
title  of  the  plaintiff's  vendor,  is  bound  V)y  the  recitals  of  the  lat- 
ter's  contract  of  sale,  admitting  paynient  of  purchase  money.* 
Estoppels  by  recitals  in  deeds  are,  in  some  respects,  as  effectual 
as  if  they  were  actual  warrantpf^f*.  Thus,  where  the  deed  of  a 
grantor  recited  that  certain  c-unveyances  had  been  tnade  to  him, 
he  could  not  afterwards  deny  that  they  had  been  made ;  nor 
could  one  deny  this  who  claimed  under  such  grantor.'  If  a  party 
convey  land,  and  in  his  deed  describes  it  as  bounded  by  a  street, 
he  is  estopped  to  deny  the  existence  of  such  a  street,  or  that  the 
grantor  might  use  the  same  in  connection  with  the  land  granted.* 

'  Wyncoop  v.  Cowing.  21  111.  5T0.  Howell,  1   Houst.   178;   Brcckcnridge 

''  Bailou  V.  Jont's,  37  111.  95;  Test  v.  v.  Ormsby,  1  J.  J.  Maibli   230. 

Eobinson,  20  Ind.  257.  '•  Parker   v.    Smith,  17   :\Iass.    413; 

*  Van    Ren.?sclaer    v.     Kearne)',    11  Olinda    v.    Lathrop,    21    Pick.    292; 

Howard,  297;  Hart  V.  Johnson,  6  Ohio,  Farnsworth   v.    Taylor,  9   Gray,  i(>2; 

87;  luskeep  v.  Shields,  4  Harr.  34.").  Rodgers     v.    Parker,    9     Gray,    445; 

♦Martin    v.    Weyman,    26    Texas.  Emerson  v.  Wiley,  10  Pick.  310:  Tuffls 

460.  V.  Cliarlestown,  2  Gray,  271;  Thomas 

'Kinsman    v.     Loomis.     11    Ohio,  v.  Poole,  7  Gray,  83;  Loving  v.  Otis, 

475;  Rangeley  v.  Spring.  22  Me.  130;  7  Gray,  563;  Smith  v.  Lock,  18  Mich. 

Farrar  v.  Cooper,  34  Me.  394;   Deun  56;  Tobey  v.  Taunton,  109  Mass.  404. 

V.    King,    1   N.   J.    L.    432;    Doe    v.  White  v.  Smith,  37  Mich.  291;  Grid  ley 


Recitals.  753 

But  the  decisions  were  bused,  in  the  above  cited  cases,  upon  tlie 
fact  that  the  grantor  was,  at  the  time  of  making  his  deed,  the 
owner  of  the  adjacent  land  described  as  the  street  or  waj.' 

In  a  late  case  the  court  said:  "The  deed  from  A.  to  B.  con 
veys  a  lot  of  land  bounded  by  a  street.  At  the  time  of  this 
conveyance,  there  was  a  well-defined  and  graded  way  or  street, 
known  as  S.  street,  running  from  one  street  to  another,  partly 
over  A.'s  land  and  partly  over  land  of  C.  If  A.  had  owned  the 
land  covered  by  the  way  in  front  of  the  lot  sold  to  B.,  it  is  too 
clear  to  admit  of  any  question  that  B.  w'ould  have  acquii'cd,  by 
estoppel,  a  right  to  the  use  of  the  way,  at  least  over  A.'s  land,  to 
its  outlet  at  another  street.*  C.  owned  the  fee  of  the  land  under 
so  much  of  the  way  as  lay  directly  in  front  of  B.'s  lot,  and  for  a 
few  feet  southeasterly ;  and  A.  owned  the  fee  in  the  land 
covered  by  the  way  from  C.'s  line  out  to  another  street.  A.  con- 
tends that  this  takes  the  case  out  of  the  general  rule.  We  know 
of  no  decisions  which  require  ns  to  hold  that,  under  such  circum- 
stances, a  grantee  will  not  acquire  a  right  of  way  .over  the  gran, 
tor's  land  so  far  as  it  extends.  And,  upon  principle,  there  are 
the  same  reasons  in  such  a  case  for  an  estoppel  in  favor  of  the 
grantee,  as  in  the  ordinary  case  where  the  grantor  owns  the  land 
in  front  of  the  granted  premises.  This  doctrine  of  estoppel  rests 
upon  the  ground  that,  when  a  man  sells  another  a  lot  of  land 
bounded  on  a  street,  the  existence  of  the  street  enters  into  the 
consideration  and  enhances  the  value  of  the  land  ;  by  bounding 
upon  the  street,  he  represents  that  tliere  is  a  street,  and  both 
parties  understand  that  the  grantee  is  to  have,  as  appurtenant  to 
his  land,  a  right  of  way  over  such  street.  It  would  be  a  breach 
of  good  faith  for  the  grantor  to  close  up  the  street,  or  to  do  any 
act  which  would  defeat  the  intention  of  the  parties  and  prevent 

V.   Hopkins.  84  111.   528;  Fox  v.  Re-  Cox  v.  James,  45  N.  Y.  302;  Dawsou 

finery,    101)    Mass.    292;    Morgan    v.  v.  lus.  Co.,  15  Minn.  130. 

Moore,  3  Gray,  319;  Luut  V.  Hulhiud,  'How     v.     Alger,    4    Alleu,    216; 

14  Mass.  149;  Davis  v.  Rainsford,  17  Livingston   v.    Mayor,    8   Wend.    85; 

Mass.    207;    Parker    v.    Bennett,    11  Bellinger   v.    Burial   Soc.,  10  Pa.  St- 

Allen,  388;  Murdook  v.   Chapman,  9  135. 

Gra3%    156;   Walker  v.    Worcester,   6         ^  Tobcy  v.  Taunton,  119  Mass.  404; 

Gray,  548;  Stetson  v.  Dow,  16  Gray,  Fox  v.  Refinery,  109  Mass.  292;  Howe 

323;  Gaw  v.  Hughes,  111  Mass.  290;  v.  Alger,  4  Allen,  200. 

Vol.  I.— 48 


7o4  The  Law  of  Estoppel. 

the  grantee  from   enjoying  tlie  riglit  of  way  impliedly  granted 
and  he  is  therefore  estopped  from  doing  so.'" 

Where  the  party  solemnly  admits  a  fact  by  a  deed  under  his 
hand  and  seal,  he  is  estopped  not  only  from  disputing  the  deed 
itself,  but  every  fact  which  it  recites."  But  if  a  deed  be  made 
by  several  owners  of  an  estate  in  common,  whatever  recital  as  to 
title  it  contains,  estops  each  grantor  as  to  his  own  interest  only, 
and  not  as  to  the  title  of  his  co-grantors.'  Where  one  tenant  iu 
common  conveyed  to  his  co-tenant  his  undivided  interest  in  a 
certain  mill  estate,  together  with  all  the  privileges  and  appurte- 
nances thereunto  belonging,  and  subsequently  purchased  a  tract 
of  land  on  the  stream  below,  he  was  estopped  from  making  any 
claim  for  diversion,  while  the  water  was  used  at  the  mil)  iu  the 
same  manner  as  when  his  interest  in  the  mill  was  conveyed."  A 
stranger  to  a  deed  can  never  set  up  the  recital  therein,  by  way  of 
estoppel  as  against  a  party  to  the  deed.* 

§  616.  A  specific  recital  that  the  grantor  in  a  deed  has  a  good 
and  sufficient  title,  or  is  possessed  of  the  estate  which  the  deed 
purports  to  convey,  estops  him  from  denying  the  fact  thus 
annexed  in  a  subsequent  action  or  proceeding  against  the  grantee." 
Recitals  in  an  instrument  are  evidence  against  the  party  making 
them,  but  when  immaterial  to  the  instrument,  or  when  the  action 
is  not  founded  on  the  instruuient  but  is  wholly  collateral  to  it, 
the  recitals  work  no  estoppel.^     In  an  English  ease  it  was  held 


»  Crowellv.  Beverly,  134  Mass.  101.  v.  Tongue,  22  Md.    414;  Williams  v. 

2  Slow  V.  Wyse,  7  Conn.  220;  Greene  Chandler,  25  Tex.  4. 

V.  Clark,  13  Vt.  158;  Lajoyev.  Primar,  ^French     v.     Spencer,     21     How. 

3  Mo.  373;  Douglass  v.  Scotl,  5  Ohio,  228;    Kearny  v.   Van   Rensselaer,  11 

194;   Van  Rensselaer   v.   Kearney,  11  How.  297;  Hemlersou  v.  Haekney,  23 

How.    532;   Clark   v.  Baker,  14   Cal.  Ga.    383;    Bfown    v.    McCormick,   6 

612;  Rich  V.  Atwater,  16  Conn.  415;  Watts,  610;  McCall   v.  Conver,  4  W 

SUlman  v.  Canales,  25  Tex.  243;  Red-  &  S.  451;  Smith  v.  Pennell,  19  Conn 

man  v.  Bellamy.  4  Cal.  247;  Stewart  111;   Hassell   v.  Walker,  5  Jones  L 

V.  Metcalf,  68  111.  109.  270;   Root   v.    Crook,    7   Pa.  St.  378 

3  Sunderlin  v.  Struthers,  47  Pa.  St.  Barbet   v.    Roth,    16    La.    Ann.   271 
411.  Wolfe's  Succession,  21  La.  Ann.  343 

*  Gluey  V.  Fenuer,  3  R.  I.  211.  ■<  Reed   v.  JMcCourt,  41   N.  Y.  435; 

6  Allen   V.    Allen,    45   Pa.    St.  573;  Bank  v.  Banks,  101  U.  S.  240;  Lowell 

Deery  v.  Cray,  5  Wall.  795;  Nutwell  v.   Daniels,  2  Gray,  161;  Phillips  v. 

Cooper,  50  Miss.  722. 


Recitals.  755 

that  a  party  to  the  instrument  is  not  estopped  in  an  action  by  the 
other  party,  not  founded  on  the  deed,  and  wholly  collateral  to  it, 
to  dispute  the  facts  recited,  although  the  recitals  would  be  in  evi- 
dence/ Where,  in  a  deed  conveying  an  unconfirmed  claim  to 
land,  without  any  warranty  of  title,  both  parties  recite  that  gran- 
tors are  the  owners  of  the  claim,  as  the  only  surviving  heirs  and 
devisees  of  the  assignee  by  purchase,  from  the  original  claimant, 
they  are  estopped  from  denying  the  truth  of  such  recitals,*  So 
where  a  guardian  of  a  person  noti  comjyos  sold  certain  real  estate 
belonging  to  his  ward  under  a  license  of  court  and  convoyed  the 
same  with  covenant  that  he  was  duly  authorized  to  sell  the 
granted  premises  ;  it  was  held  that  the  guardian  was  estopj)ed  by 
such  covenant,  from  setting  up  a  claim  in  his  own  right  to  any 
portion  of  such  real  estate  under  a  previous  conveyance  to  him  in 
his  own  right/  Parties  to  a  deed  cannot,  in  a  controversy  with 
strangers,  insist  that  the  deed  does  not  express  what  it  was 
designed  to  express,  _  Thus,  where  land  has  lieen  conveyed  to 
two  as  tenants  in  common,  and  the  interest  of  one  has  been  sold 
to  a  third  party  upon  a  judgment  against  him  prior  to  the  date  of 
tlie  deed,  the  other  tenant  cannot  set  up,  against  the  title  of  such 
third  person,  that  the  interest  conveyed  to  the  co-tenant  and  sold 
on  execution,  was  intended  to  be  only  in  the  nature  of  a  mortgage 
to  secure  money  lent  bj"  him  in  part  payment  for  the  land.'' 

§  617,  If  a  deed  of  conveyance,  expressly  or  by  necessary 
implication,  affirms  or  recites  that  the  grantor  has  and  conveys  a 
fee-simple  in  the  land,  his  heirs  are  estopped  from  denying  that 
he  had  that  estate  and  passed  it  by  the  deed  to  the  grantee.^  But 
where  a  principal  gives  his  agent  a  power  of  attorney  to  sell  cer- 
tain land,  and  the  agent  exceeds  his  authority  and  sells  land  not 
included  or  described  in  the  authority  given  him  in  the  power  of 
attorney,  the  principal  in  selling  other  land  is  not  estopped  by 


»  Champlaiii  v.  Valentine,  19  Barb.  Oreg.    235;   Gould  v.  West.  32   Tex. 

484;  Carpenter  v.  Buller,  8  Mees.  &  338;   Harris  v.    Hardeman,    29    Tex. 

Wels.  209.  241;  Wright  v.  Dailey,  26  Tex.  731; 

=>  Glamorgan  v.  Greene,  32  Mo.  285.  Marsli  v.  Weir,  21  Tex.  110;  Castro  v. 

3  Heard  v.  Hall,  16  Pick.  457.  Wurzbach,  15  Tex.  128;  Thompson  v 

*  Campbell  v.  Lowe,  9  Sid.  500.  Cragg,  24  Tex.  582;  Elliott  v.  Whit- 

5  Van    Rensselaer    v.    Kearny,    11  taker,  30  Tex.  411;  League  v.  Atchi- 

How.    297  ;    Taggart    v.     Risley,    4  sou,  6  Wall.  118. 


766  The  Law  of  Estoppel. 

the  recital  in  his  deed  of  a  portion  of  the  boundary,  describing  it 
iis  sold  by  his  agent,  from  denying  the  agent's  authority  to  make 
the  deed.'  One  who  has  purchased  goods  from  another  who  had 
previously  made  a  fraudulent  assignment  of  them  is  estopped, 
like  his  vendor,  from  impeaching  the  assignment.'  But  an 
assignee  of  property  for  the  benefit  of  creditors  is  estopped  from 
denying  that  persons  who  are  named  in  the  assignment,  as  cred- 
itors of  the  assignor,  are  such  creditors.'  A  recital  in  a  deed  that 
fourteen  acres  is  all  the  land  conveyed,  estops  a  party  deriving 
his  title  from  such  deed,  from  claiming  more  than  that  quantity 
of  land.' 

§  618.  A  recital  in  a  deed  of  release  that  a  lease  was  duly 
executed  and  delivered  may  be  conclusive  upon  subsequent  credi- 
tors and  purchasers,  and  estop  them  from  alleging  that  the  convey- 
ance failed  from  the  want  of  an  estate  in  the  release  ;  but  they 
are  estopped  from  showing  that  the  deed  was  voluntary  when  it 
contains  a  recital  that  it  was  made  for  a  valuable  consideration  ; 
so  a  declaration  that  the  grantor  has  a  good  title  or  was  seized  in 
fee,  may  be  disproved  by  the  grantee  or  a  third  person,  although 
it  may  enlarge  the  scope  of  the  deed  and  bring  an  after  acquired 
estate  within  i.ts  operation.  A  statement  in  a  grant  of  one  tract 
of  land,  Avith  regard  to  another,  cannot  estop  a  subsequent  pur- 
chaser of  the  former  in  any  controversy  that  may  arise  with 
regard  to  the  latter. 

§  G19.  \Yhere  a  covenant  or  recital  in  a  deed  to  one  man  is  so 
worded  as  to  induce  a  third  person  to  adopt  a  course  from  which 
he  cannot  recede  without  injury,  there  is  sufficient  privity  to  give 
rise  to  an  estoppel."  In  regard  to  wills,  an  heir  cannot  take 
under  and  in  hostility  to  the  will.  If  he  claim  under  the  will,  he 
must  give  it  effecc  so  far  as  in  his  power,  and  a  party  claiming 
through  deeds  which  recite  a  will  is  estopped  from  denying  its 
validity  and  genuineness."     So  a  recital  in  a  will  that  the  testator 

'  Rice  V.  Siiveiiiier,  8 Minn.  248.  3  W.  Vu.  438. 

^  Bynum  v.  ]\IilkT,      N.  C.     ;  S.C.,  *  Jclleison  v.   Howell,  1   Houston, 

41  Am.  H.  467.  Del.  178. 

a  Gundy    v.    Vivian,    17   Wis.  486;  ••  NVater's   Appeal,  35   Pa.    St.   523; 

Gcisse  V.  Beal,   3  Wis.  367;  Jones  v.  Thrower  v.  Wood,  53  Ga.  458. 

Jones,   20  Iowa,  388;  Hutchinson  v.  >*  Jackson  v.  Thompson,  6  Cowen, 

Lord,  1  Wis.  286;  Coal  Co.  v.  Webb,  178;  Vaa  Duyue  v.    Van  Duyne,  14 


Recitals.  757 

had  executed  a  deed  to  the  defendant,  was  evidence  against  the 
testator's  heirs  of  a  perfect  execution  of  such  deed,  and  of  tifle  in 
the  defendant.'  So,  where  A.  accepted  a  grant  confirmatory  of  a 
will  devising  him  a  remainder,  the  grantee  was  estopped  from 
setting  up  any  title  inconsistent  with  the  will." 

§  620.  The  effect  of  recitals  in  deeds  was  considered  in  the 
case  of  Douglass  v.  Scott."  One  Massie  made  a  deed  to  the  heirs 
of  one  Montgomery,  who  had  entered  under  an  agreement  for  a 
deed,  and  died  in  possession  of  the  land.  The  heirs  conveyed  to 
Kerr  by  deed,  with  warranty,  reciting  the  patent  to  Massie.  and 
Massie's  deed  to  them.  Kerr  entered  under  this  deed.  Massie 
never  received  his  patent,  and  having  died,  it  was  issued  to  his 
heirs,  Douglass,  prior  to  1816,  obtained  a  judgment  and  cred- 
itor's lien  on  .the  land  against  Kerr,  which,  being  kept  alive,  he 
sold  the  land  in  1821,  and  acquired  a  title  under  this  sale.  In 
1816,  Kerr  mortgaged  the  estate,  and  in  his  deed  recited  the  title 
by  patent  in  Mossie,  the  sale  by  Massie  to  the  Montgomery  heirs, 
and  their  conveyance  to  him.  The  land  was  sold  under  this 
mortgage  and  purchased  by  Scott,  in  1823.  Kerr  released  to 
him,  as  did  the  trustees  of  the  heirs  of  Massie,  to  whom  the 
patent  issued.  The  deed  from  Massie  to  the  Montgomery  heirs 
was  invalid  for  want  of  proper  execution.  Douglass  brought  a 
bill  in  equity  to  quiet  his  title.  The  court  held  :  "  That  the 
obligation  created  by  estoppel  not  only  binds  the  party  making 
it,  but  all  persons  privy  to  him — the  legal  representatives  of  the 
party — tliose  who  stand  in  his  situation  by  act  of  law,  and  all 
who  take  his  estate  by  contract  entered  into  in  his » stead,  and  are 
subjected  to  all  the  consequences  which  accrue  to  him.  It  adheres 
to  the  land,  is  transmitted  with  the  estate,  it  becomes  a  muni- 
ment of  title,  and  all  who  afterwards  acquire  the  title,  take  it 
subject  to  the  burden  which  the  existence  of  the  fact  imposes 
on  it."  They  held,  that  Douglass  acquired  the  legal  title  of 
Kerr  by  the  sale  under  the  judgment,  and  that  the  recital  in 
Kerr's  deed  from  Montgomery's  heirs,  that  Massie  had  received 

N.  J.  E.  49;  Smith  v.  Guild,  34  Me.  •  Smith  v.  Wait,  4  Barb.  28. 

443;  Des  Londes  v.  New  Orleans,  14  i»  Jackson  v.  Ireland,  3  Wend.  99; 

La.    An.    552;  Landis    v.   Landis,    1  Preston  v.  Jones,  9  Pa.  St.  456, 

Grant "s  Cas.  249.  ^  Douglass  v.  Scott,  5  Ohio,  194. 


768  The  Law  of  Estoitel. 

a  patent  and  conveyed  the  estate  to  them,  was  one  upon  which 
Kerr  had  a  right  to  hold  them  bound,  as  an  admission  of  the 
fact  by  which,  as  a  party  to  the  deed,  he  was  himself  bound,  and 
that  Kerr's  assignee,  clamiing  under  him,  was  alike  concluded; 
that  the  land  was  patented  to  Massie,  and  conveyed  by  him  to 
the  Montgomery  heirs,  was  proved  by  their  admission  while  they 
were  owners  and  were  disposing  of  the  estate,  "  upon  which  all 
persons  deriving  the  title  under  them  have  a  right  to  rely,  and 
which  concludes  all  persons  to  whom  their  estate  is  transmitted," 
and,  "  that  ueitiier  party,  deriving  the  title  through  this  deed, 
are  at  liberty  to  question  these  facts.'"' 

§  621.  The  recital  in  a  patent  of  a  prior  patent  being  a  recital 
of  a  particular  fact  directly  affirmed,  estops  one  claiming  under 
it  from  denying  the  existence  of  such  prior  patent.  Wherein  a 
deed  conveying  an  unconfirmed  claim  to  land,  without  any  war- 
ranty of  title,  both  parties  had  i-ecited  that  the  grantors  in  the 
deed  were  the  owners  of  the  claim  as  the  only  surviving  heirs 
and  devisees  of  the  assignee  bj'  purchase  from  the  original 
claimant,  they  are  estopped  from  denying  the  truth  of  such 
recitals.'  An  infant  is  not  bound  by  recitals  in  his  deed.'  The 
recitals  of  a  deed  estop  only  parties  and  privies. 

§  622.  The  date  of  a  deed  may  be  contradicted,  as  not  being 
essential  to  its  operation,  and  as  a  general  thing  is  not  intended 
to  be  within  the  conclusion  of  a  seal.  But  when  the  effect  of  :ts 
contradiction  would  be  to  vary  the  effect  of  the  instrument  or 
defeat  any  right  which  it  was  meant  to  confer,  it  becomes  a 
recital  which  becomes  conclusive  and  cannot  be  denied.*  So  the 
usual  clause  in  a  bill  of  sale,  '*  this  day  sold,"  estops  the  vendor 
from  denying  that  it  was  made  on  that  day.     So  a  party  to  a 

'  Douglass  V.  Scoit,  5  Ohio,  194;  Mc.  Byrne    v.    JSIorebouse,    22    111.    603- 

Cleskey  v.   Leadbetter,     1    Ga.    551;  Stewart    v.    Butler,   2  S.    &  11.381; 

Den  V.  Brewer,  1   N.  J.   L.  172;  Den  Jackson  v.  Piirklmrsl,  9  Wend.  209; 

V.  King.   1  N.  .7.  L.  432;  Kinsman  v.  Carver  v.  .Jackson,  4  Pet.  1. 

Loomis,    11    Ohio,    475;    Taggart   v.  -  Glamorgan  v.  Greene,  :'2  Mo.  285. 

Risley,     4    Oreg.    235;     Thrower    v.  ^  Houston  v.  Turk,  7  Yerg.  13. 

Wood,  53  Ga.  458;  Crane  v.  Morris,  6  ■*  Kinibro  v.  Hamilton,  2  Swan, 190; 

Pet.  598;  Knight  v.  Leary,   34   Wis.  Dyei  v.  Ritch,  1   Met.   180;  Curdy  v, 

459;  Inskeep  v.  Shelds,   4  Har.   345;  Eggleston.   11  Mass.  282;  Tnbble  v. 

Oldham,  5  J.  J.  Marsh.  137. 


Recitals.  759 

deed  by  recording  it  would  be  equitably  estopped  from  sliowing 
that  it  was  not  delivered  at  its  date.'  Where  a  principal  in  a 
power  of  attorney  gives  it  a  false  anterior  date,  for  the  purpose 
of  legalizing  prior  acts  of  the  attorney,  he  is  estopped  to  aver 
that  it  was  executed  at  a  subsequent  period."  So  where  a  cov- 
enant is  made  the  basis  of  a  deed  or  agreement,  it  is  as  conclu- 
sive as  a  positive  averment  or  recital — as,  for  example,  a  descrip- 
tion of  the  land  conveyed  by  a  deed  as  bounded  by  a  road  or 
street  estops  the  grantor  from  denying  the  truth  of  the  descrip- 
tion, whether  the  way  is  set  forth  as  already  there  or  is  to  be  laid 
out  and  opened.  The  object  in  both  instances  is  to  give  cer- 
tainty to  a  grant,  and  a  contrary  allegation  would  contravenes 
and  might  defeat  the  intention  of  the  parties.* 

§  623.  There  are  a  few  exceptions  to  the  effect  given  to 
recitals  in  deeds,  one  of  which  is  in  the  case  wliere  the  deed 
containing  the  recital  is,  upon  its  face,  a  void  one.  There  it 
does  not  work  an  estoppel."  Or  if  it  be  inoperative  from  any 
cause,  as  for  want  of  proper  execution,  even  if  it  containicoveuants 
of  warranty.^  And  though  a  party  claiming  title  under  a  deed  is 
barred  by  the  recitals  in  such  deed,  he  may  show  that  the  deed 
in  which  they  are  contained  is  inoperative,  defective,  and  void." 
Another  is,  where  the  other  party  who  would  enforce  the  estop- 
pel, proposes  to  go  behind  the  deed  which  contains  the  recitals,  to 
defeat  it.  As  wiiere  one  holding  a  mortgage  took  a  deed  of 
release  from  th  ;  mortgagor,  reciting  that  its  object  was  to  cancel 
the  mortgage,  and  a  third  person  claimed  title  to  the  same  laud 
through  an  attachment  laid  upon  it  between  the  date  of  the 
mortgage  and  that  of  the  deed  of  release,  the  grantee  in  such 
deed  of  release  was  permitted  to  show  that  he  still  lield  under  the 
mortgage  by  an  agreement  with  the  debtor  to  await  the  result  of 
the  attachment.^ 

«  Blake  v.  Flash,  44  111.  302.  v.  Buchanan,  (J3  Ala.  110. 

«  Milliken  v.  Coombs,  1  Me.  343.  "  Sinclair  v.    Jackson,  8  Cow.  543; 

'  Parker  v.    Smith,    17  Mass.  413;  ATallace  v.  Miner,  3  Ohio,  366;   Bank 

O'Linda   v.    Lalhrop,    21    Pick.    291;  v.    Bellis,    10    Cush.    276;    Lowell  v. 

Tuffls  V.  Charlestowu.   2  Gray,  2^1;  Daniels,  2  Gray,  161;   Cuthberston  v. 

Johnsfon  v.   Scott,  11  Mich.  232;  Mar-  Irving,  4  H.  &  N.  742. 

tin  V.  Wayman,  26  Tex.  460;   Reeves  ^  Patterson  v.  Pease,   5   Ohio,    190. 

V.  Vinacke,  1   McCraiy,  213;   Mason  «  Blake  v.  Tucker,  12  Vt.  39. 

'  Crosby  v.  Chase,  17  Me.  369. 


760  The  Law  of  Estoppel. 

§  G24.  The  estoppel  in  general  extends  to  all  the  facts  recited 
in  the  deed.  But  an  exception  to  the  conclusiveness  of  recitals 
in  a  deed  has  been  allowed  in  the  case  of  the  recitals  of  the  amount 
of  the  consideration  and  the  fact  of  its  payment.  The  grantor  in 
a  deed  conveying  in  fee  simple,  acknowledging  the  receipt  of  the 
consideration,  is  not  estopped  from  showing  a  different  considera- 
tion from  that  expressed  in  the  deed.*  If  the  deed  recite  that 
the  consideration  was  paid  by  a  husband  and  wife,  parol  evidence 
is  admissible  to  show  that  the  money  consisted  of  a  legacy  given 
to  the  wife.'  In  England  the  recital  is  regarded  as  conclusive 
evidence  of  payment,  binding  the  parties  by  estoppel.^  But 
the  general  practice  in  the  American  courts  has  been  to  treat  the 
recital  of  the  amount  of  the  money  paid,  like  the  mention  of  the 
date  of  the  deed,  the  quantity  of  the  land,  and  other  recitals  of 
quantity  and  value,  to  which  the  attention  of  the  parties  is  sup- 
posed to  have  been  slightly  directed,  and  to  which,  therefore,  the 
principles  of  estoppel  do  not  apply  ;  while  the  party  is  estopped 
from  denying  the  convej^^nce,  and  that  it  was  for  a  valuable  con- 
sideration, yet  the  weight  of  the  American  authorities  is  in  favor 
of  treating  the  recital  as  only  ^rw/za/ac'^'tf  evidence  of  the  amount 
paid  in  an  action  of  covenant  by  the  grantee  to  recover  back  the 
consideration,  or  in  an  action  of  assumpsit  by  the  grantor  to 
recover  the  price  which  is  yet  unpaid ;  with  the  exception  of  the 
states  of  North  Carolina^  and  Louisiana  it  is  the  universal  rule  of 
the  American  courts,  that  where  a  deed  acknowledges  the  receipt 
of  a  consideration,  the  grantor  and  all  claiming  under  him  are 

'  Rabsiibc!    v.    Lack.   35    Mo.    316;  ^  Lampson  v.  Corkc,  5  B.    &   Aid. 

Wilkinsoav.  Scott,  17  Mass.  249;  Gale  606;  Roimtree  v.   Jacob,  2  Taunton, 

V.   Coburn,    18  Pick.    897;   Clapp  v.  141;   Baker  v.  Dewey,  1  B.  &  C.  704; 

Tirrell,   20  Pick.  247;  Liveimore  v.  Shelly  v.  "Wright,  Willes,  9;  Jones  v. 

Aldrieh,  5  Cush.  431;  Preble  V.   Bald-  Sasser,    1    D.    &  B.    452;    Forest    v. 

win,  6  Cush.  550;  Chuk  v.  Deshon,  12  Shores,    11    La.    Ann.    415;    Hill    v. 

Cash.  539;  Paige  v.  Sherman.  6  Gray,  Manchester,  2  B.  &  A.  544;  Spiers  v. 

511;  Miller  v.  Goodwin,  8  Gray,  542;  Clay,  4  Hawks.  22;  Cossens  v.   Cos- 

Irwin  V.  McKeon,  23  Cal.  472;  Good-  sens,  Willes,  25;  Downs   v.  Cooper,  3 

speed  V.  Fuller,  46  Me.  141;  Coles  v.  A.  &  E.  252;  Doe  v.  Payne,  1  A.  &E. 

Soulsby,  21  Cal.  47;  McCrea  v.   Pur-  538. 

mort,  16  W\^u(l.  460.  «  Mendenhall  v.  Parish,  8  .Jones  L. 

«  Doe  V.  Stalham,  7  D.  &  Rj'.  141;  105;  Hudson  v.   Critcher,  8  Joues  L. 

Shelly  V.  Wright,  Willes,  25.  285;  Keedles  v.  Hanifan,  11  111.  App. 

303. 


Recitals.  761 

estopped  from  denying  that  one  was  paid.  They  may  disprove 
the  payment  for  the  purpose  of  recovering  the  consideration 
money,  but  they  cannot  do  so  for  the  purpose  of  destroying  the 
effect  and  operation  of  the  deed.  The  design  of  the  chuise 
acknowledging  payment  of  consideration,  is  not  to  fix  the  precise 
amount  paid,  "  but  to  prevent  a  resulting  trust  in  the  grantee." 
It  cannot  be  contradicted  or  varied  by  parol,  so  as  in  any  way  to 
affect  the  purpose  of  the  deed,  that  is,  its  operation  as  a  con- 
veyance,' and  this  though  the  deed  is  not  stated  to  be  upon  other 
considerations.'^  Where  a  deed  conveying  personal  property 
acknowledges  the  receipt  of  the  purchase  money,  this  recital  may 
be  contradicted  and  explained  by  parol  evidence,  which  shows 
that  the  money  has  not  in  fact  been  paid.  But  such  evidence 
cannot  affect  the  legal  import  of  the  deed/  The  grantor  is  estop- 
ped to  deny  a  resulting  trust  in  his  favor,  or  to  deny  that  the 
deed  was  executed  for  the  purposes  expressed  in  it.*  Where  the 
deed  is  attacked  for  fraud  the  parties  cannot  show  a  consideration 
different  from  that  in  the  deed. 

§  625.  An  officer's  deed  of  sale  under  execution,  is  not  evi- 
dence of  the  matter  recited  in  it  against  strangers,  and  least  of 
all,  as  against  those  claiming  adversely  to  it/  In  a  suit  on  a 
delivery  bond,  the  return  of  the  officer  made  in  the  original  suit, 
in  relation  to  the  disposition  of  the  property,  is  conclusive  upon 
the  parties  ;  a  return  to  an  execution  is  always  conclusive  against 

»  Perry  v.  R.  R.  Co.,  5  Cald.  138;  Walker,  30  111.  511;  Sprigg  v.  Bank, 

Rockhill  V.  Spragg,  19  Ind.  30;  Grout  14  Peters,  206;  Stackpole  v.  Robbins, 

V.  Townsend,  3   Hill,  o54;  MoCrea  v.  47  Barb.  219;   Beach  v.  Packard,  10 

Purmort,  16  "Wend.   460;  Barnura  v.  Vt.    96;   Garrard  v.   Bradley,   7  lud. 

Cbilds,  1  Sandf.  58;  Meriam  v.  Harseu,  600;  Hurn  v.  Soper,  6  Harr.  &,  J.  276; 

2  Barb.  Cb.  232;  Bank  v.  Houseman,  Sbep.  Toucb.  223;  Rynear  v.  Neilia, 

6  Paige,  526;  Doe  v.  Beardsley,  3  Mc-  3  Iowa,  310;  Cbapman  v.  Miller,  130 

Lean,    412;    Harvey  v.   Alexander,  1  Mass.  289. 

Rand.    219;    Goodwin    v.    Gilbert,   9  2  Powell  v.  Mfg.  Co.,  3  Mason,  347; 

Mass.    310;    Winans    v.    Peebles,    31  Needles  v.  Hanifan,  11  111.  App.  303. 

Barb.  371;  Farrington  v.  Barr.  36  N.  ^  Taggard  v.  Stanberry,  3  McLean, 

H.  86;  Graves  v.  Graves,  29  X.  H.  129;  543;  Richardson  v.  Clow,  8  111.  App. 

Pliilbrook    v.    Delano,   29    .Me.    410;  91. 

Wilt  v.  Frankhn,  1  Binn.  502;  Bank  ^    "Kimball  v.   Walker,    30  111.   482; 

V.   Watson,   13  R.  L  91;  Meeker  v.  Galbraith  v.  Cook,  30  Ark.  417. 

Meeker,  16   Conn.    383;    Kimball  v.  '  Donahue    v.    McNulty,    24   Cal. 

411. 


762  The  Law  of  Estoppel. 

the  officer  making  it,  and  in  contests  between  the  parties  to  the 
action  they  cannot  contradict  the  sheriff's  return,  it  can  only  be 
impeached  in  an  action  against  the  slieriff,'  but  as  against  otlier 
parties  it  is  generaWy  ^?-ima  facie  evidence  of  the  facts  which  it 
recites.  Where  a  sheriff  returns  anything  as  a  fact,  done  in  the 
course  of  his  duty  in  tlie  service  of  a  precej^t,  it  is  conchisively 
presumed  to  be  true  against  him,  and  he  is  estopped  from  deny- 
ing it.  Where  the  certificate  of  a  justice  of  the  peace  is  offered 
in  evidence  against  him  in  a  cause  where  he  is  a  party,  the  certi- 
ficate being  his  official  act,  done  under  the  sanction  of  his  oath, 
in  the  performance  of  a  duty  imposed  upon  him  by  law,  though 
under  some  circumstances,  it  may  be  impeached  by  others,  he  is 
estopped  from  denying  the  truth  of  what  he  has  officially 
certified.* 

§  626.  A  statement  in  one  transaction  will  not  be  binding  in 
another  which  it  was  not  designed  to  influence,  and  to  render  an 
admission  binding  on  the  right  sought  to  be  enforced,  it  must 
have  been  acquired  on  the  faith  of  the  admission,  A  recital  in  a 
deed,  that  the  consideration  was  pecuniary,  or  that  it  has  been 
paid  may  be  conclusive  on  a  suit  brought  on  the  deed  itself,  or 
for  the  price  of  the  land  conveyed,  but  is  open  to  contradiction 
when  the  title  to  other  land  is  involved,  or  in  a  pi-oceeding 
instituted  to  test  the  question  whether  the  grant  was  not  voluntary 
and  intended  as  an  advancement  by  the  grantor.'  Estoppels  are 
founded  on  intention,  and  are  limited  by  it,  and  cannot  extend  to 
objects  which  the  pai-ties  can  not  reasonably  be  supposed  to  have 
had  in  view.  A  recital  may  therefore  be  an  estoppel  for  some 
purposes  and  not  for  others."  Thus,  while  the  consideration  set 
forth  in  a  deed  cannot  be  impeached  or  its  payment  denied,  In 


'  Thompson  v.  Hammond,  1  Edw.  Bartholow,    69    Mo.   186;    Butler    v. 

Ch.  497;   Edwards  v.  Tipton,  79  N.  State,  20  Ind.  169.     See  §§  452,453, 

C.  222;   Ijiller  v.  Roberts,  1-3  S.  &  R  Ante,  OfBcers'  Return. 

64;   IMcCldland  v.  Slingluff,  7  W.  &  "  M:i1  thews  v.  Dare,  20  Md.  248. 

S.  135;  Flick  v.   Troxell,  7  W.  &  S.  »  Harrison  v.  Castcnor.  11  Ohio  St. 

67;  Mentzv.  Hamman,  5  Whart.  153;  329;   Rockhill  v.    Spraggs,  9  Ind.  30: 

Paxsons    Appeal,    49    Pa.    St.    195;  Richardson  v.  Clow,  8  111.  App.    91; 

Bogue's  Appeal,  83  Pa.  St.  101;  Stein's  Piiillips  v.  Cooper,  50  Miss.  722. 

Appeal,  83  Pa.  St.  101;   Newburgcr's  ♦  Young  v.   Raincock,  7  C.  B.  310; 

Appeal,  83  Pa.  St.  101;  Anthony  v.  Richardson  v.  Clow.  8  111.    App.  91. 


Kecitals,  763 

order  to  defeat  the  operation  of  the  instrument  as  a  convej'ance, 
or  operate  to  raise  a  resulting  trust,  it  may,  notwithstanding,  be 
impeached  so  as  to  increase  or  reduce  the  amount  or  nature  by 
parol  evidence  or  the  receipt  given  for  it  be  contradicted  in  an 
action  brought  by  the  gi'antor  for  the  price,  or  against  him  on  the 
covenant  for  title.'  Where  a  subsequent  deed  is  made  for  the 
purpose  of  rectifying  and  supplying  errors  and  omissions  in  a  prior 
deed  between  the  same  parties,  the  intention  being  to  substitute 
the  latter  for  the  former  deed,  it  is  valid  veithout  any  new  con- 
sideration, and  will  estop  the  vendor  from  denying  consideration.* 

§  627.  A  party  to  the  deed  is  not  estopped  in  an  action  by 
another  party  not  founded  on  the  deed,  and  wholly  collateral  to 
it,  from  disputing  the  truth  of  certain  facts  recited  and  set  forth 
in  such  deed.^  When  a  recital  in  a  deed  is  intended  to  be  a  state- 
ment which  all  the  parties  to  the  deed  have  mutually  agreed  to 
admit  as  true,  it  is  an  estoppel  upon  all.  But  where  it  is  intended 
to  be  the  statement  of  one  party  only,  the  estoppel  is  confined  to 
that  party,  and  the  intention  is  to  be  gathered  from  construing 
the  whole  instrument."  As  between  the  parties  themselves,  any 
averment  of  a  fact  made  by  one  of  the  parties  in  the  nature  of  a 
warranty  to  the  other,  may  be  contradicted  and  shown  to  be  false 
by  that  other.  If  a  deed  of  assignment,  for  example,  recites  that 
the  assignor  is  possessed  of  some  estate  or  interest,  such  as  a  lease, 
or  a   patent  right,  and   then   proceeds   to  assign  such  estate  or 

1  Farrlngton  v.  Barr,  36  N.  H    86;  Grout  v.  Townsend,  2  Hill.  554;  Stone 

Hammond  v.  Woodman,  41  Me.   177;  v.  Duvall,  77  111.  75;  Chapman  v.  3Iil- 

Rawle   Gov.    65,  463;   Richardson  v.  ler,  130  Mass.  289;  Howell  v.  Hale,  5 

Glow,    8    III.    App.    91;    Ulinger  V.  Lea,  405;  Irvine  v.  Hall,  5  Lea,  405. 
Crowe,  17  Md.  361;  Leders  v.  Riley,  =  Park  v.  Cheek,  2  Head,  451. 

23  111.  109;  Benjamin  v.  MeConnell,  9  ^  Carpenter  v.   Bulier,   8  M.  &  W. 

111.    536;   Douglas  v.  Littler,   58   111.  209. 

342;   McMullen  v.  Glass,  37  Pa.  St.         ^  Stroughill  v.  Buck.  14  Q.  B.  787; 

151;  Bynear  v.    Neilin,  3  Iowa,  310;  Wiles   v.    Woodward,    5   Exch.    557; 

Steele  v.   Adams,  1  Me.   1;  Quirk  v.  Carpenter  v.  Bulier,  8  M.  &  W.  209; 

Thomas,  6  Mich.  76;  Russv.  Mebius,  Gutter  v.   Dickinson,    8    Pick.    386; 

16  Cal.  350;  Kinuebrew  v.  Kinnebrew,  Doane  v.  Wilcutt,  16  Gray,  368;  Farrar 

35  Ala.  628;  Johnson  V.  Town  Co.,  14  v.    Cooper,    34  Me.    394;   Hovey  v. 

Kas.    390;   Stackpole  v.   Robbins,  47  Woodward,  33  Me.  470;  Williams  v. 

Barb.  212;  Coles  v.  Soulsby,  21  Cal.  Sutherland,  10  Iowa,  51;  Bruce  v.  U. 

47;  Hendrick  v.  Crowley,  31  Cal.  471;  S.,  17  How.  437;  Wade's  Succession, 

21  La.  Ann.  343. 


764  The  Law  of  Estoppel. 

interest,  and  the  assignee,  in  consideration  of  the  assignmentj 
enters  into  certain  covenants  upon  which  an  action  is  brought,  the 
assignee  is  not  estopped  from  showing  tliat  tlie  recital  was  false, 
and  that  no  such  estate  or  interest  was  vested  in  the  assignor,  and 
transferred  by  virtue  of  the  deed.'  But  the  assignor  himself, 
who  makes  the  averment,  would  not  be  permitted  to  contradict 
or  dispute  the  fact  recited.'  If  a  lease,  however,  recites  that  the 
lessor  is  possessed  of  real  or  personal  property,  the  lessee  who 
executes  and  accepts  such  lease  is  estopped,  as  we  have  previously 
seen,  during  the  continuance  of  his  occupation,  from  denying  the 
title  and  possession  of  his  lessor  at  the  time  such  lease  was  exe- 
cuted.' So  a  party  is  estopped  by  recitals  of  ownership  in  a  deed 
or  mortgage  to  set  up  title  in  a  third  person.* 

§  628.  The  same  principle  which  has  created  an  estoppel  in 
certain  cases  where  none  would  have  existed  at  law,  has,  in  oth- 
ers destroyed  that  which  the  law  could  have  created  ;  for  as  an 
estoppel  will  be  called  into  being  for  the  prevention  of  fraud,  so 
it  will  be  suppressed  when  fraud  will  be  produced  by  its  exist- 
ence.'* This  is  a  well  established  principle  in  courts  of  equity, 
but  has  been  applied  reluctantly  in  courts  of  common  law  and  it 
has  become  a  well  established  principle,  that  while  the  general 
estoppel  of  admissions  under  seal  continue  so  far  as  to  forbid  an 
attempt  to  avoid  the  operation  of  a  deed  as  a  conveyance,  by 
denying  the  consideration,"  it  no  longer  exists  in  a  suit  brought 
for  the  purchase  money,  or  to  enforce  the  fulfillment  of  collateral 
stipulations  contained  in  the  instrumerjK:.  In  all  such  cases,  the 
general  operation  of  the  deed  being  left  untouched,  evidence  may 


'  Haynev.MaltbJ^  3T.R.  441;  Vin.  Eoberts  v.    Roberts,    2  B.  &  A.  367; 

Abr.  Estoppel,  M.  4',-).  Nevett  v.  Berry,  r,  Crancb  C.   C.  291. 

2  Oldham  v.  Langmead,  3  T.  p.  ^  pendieton  v.  Ricbey,  32  Pa.  St.58: 
439;  Humble  v.  Hunter,  12  Q,  B.  Schettiger  v.  Hopple,  2  Grant's  Cas. 
310.  54;  Ins.  Co.  v.  Martin,  13   Minn.  59; 

3  Beckett  V.  Bradley,  7  M.  &  Gr.  Mills  v.  Graves.  38  111.455;  Jaclv  v. 
995;  Hall  v.  Ilaun,  5  Dana,  55.  Dougherty,  3  W.  &  H.    151;  Brooks 

MViles    V.    Woodward,    5  E.xebq.  v.  Maltbie,  4  Stew.  A:  P.  96. 

557;  Harvey  v.  Hatvcy,  13  R.  I.  598;  «  Farrington  v.  Barr,   36  K  H.  86; 

Bessey    v.    Wyndbara,    6  Q.  B.   160;  \Yielt  v.  Franklin,  1   Bin.  502;  Grant 

Philpotts  V.    Philpolts,  10  C.    B.  85;  v.  Townsend,  2  Hill,  557;   Thomp.soa 

V.  Buchanan,  2  J.  J.  Marsh.  416. 


Recitals.  765 

be  given  to  vary  the  consideration  both  in  amount  and  character,' 
or  to  show  that  it  was  not  paid  in  opposition  to  a  recital  in  the 
instrument  or  the  accompanying  receipt  that  it  was  ;"  and  the 
deed  held  conclusive  at  law  of  the  nature  of  the  consideration, 
although  not  that  it  was  paid,'  and  liable  to  be  impeached  in 
equity  on  the  ground  of  fraud,^  the  real  consideration  may  be 
shown  to  be  natural  love  and  affection,  while  the  deed  purports 
to  be  made  for  value  or  a  sum  certain  set  forth  on  its  face,"  while 
the  deed  is  the  execution  of  the  contract  of  sale,  it  is  not  the 
contract,  the  object  of  the  deed  being  to  transfer  the  title  to  the 
purchaser,  and  not  to  state  the  terms  of  the  purchase."  The 
estoppel  will,  therefore,  be  limited  as  in  other  cases,  to  the  object 
the  parties  have  in  view,  and  will  not  extend  to  other  and  collat- 
eral matters,  forming  part  of  the  same  transaction.  There  could 
be  no  greater  wrong  inflicted  than  in  treating  formal  receipts 
introduced  into  conveyances  for  the  benefit  and  convenience  of 
grantees,  in  order  to  facilitate  the  transfer  of  the  title  to  subse- 
quent purchasers,  as  conclusive  evidence,  in  opposition  to  the 
truth    of  the   case   and  understanding  of  the  parlies.'     But  in 


1  Goodspeed  V.  Fuller,  46   Me.  141;  Bell,  20  Johns.  S3S;  McCrea  v.    Pur- 

Joaes  V.  Jones,  13  lad.  389;  Harrison  mort,     16    Wend.    460;    Hamilton  v. 

V.  Castner,  11  Ohio,  339;  Holbrook  v.  Maguire,  8  S.  «&  R.  355. 
Holbrook,   30    Vt.    532:  Swafford  v.  ^  Shepard    v.   Little,    14   Johnson, 

Whipple,     3    Iowa,    261;   Bullard   v.  210. 

Briggs,  7  Pick.  533;  Brown  v.   Lunt,  ^  Hildreth  v.    Sands,  2  Johns.   Ch. 

37    iMe.    423;     Miller   v.   Goodwin,  8  35;  Morse  v.  bhattuck,  14  JST.  H.  229. 
Gra}^  542;  Thompson   v.  Thompson,  ^  RockhiJl   v.    Spraggs,    9   lud.  30; 

9   Ind.   323;    Rockhill  v.  Spraggs,    9  Harrison    v.     Castner,    11    Ohio    St. 

Ind.  30;  Steele  v.  Adams,  1  Me.  1.  339. 

=  Reynolds  V.    Vilas,   8   Wis.    ^71;  «  White  v.  Miller,  22  Vt.  380;  Bolles 

Harwell  v.   Fitts,  20  Ga.   723;  Vang-  v.    Beach,  2    N.    J.  680;    Winans  v. 

iner  v.  Taylor,    18   Ark.    65;  Hair  v.  Peebles,  33  Barb.   371 ;  Thompson  v. 

Lyttle,  28  Ala.  236;  Hill  v.  Perry,   8  Thompson,    9    Ind.    323;    Rhine    v. 

Jones, 579;  Beldeuv.  Seymour,8  Conn.  Allen,  36  Cal.  362;  Phillips  v.  Cooper, 

312;   Buckley's   Appeal,    48    Pa.   St.  50  Miss.  722. 

494;  Rynear  v.  Neilin,  3  Iowa,  310;  ">  Eckels    v.    Carter.    26    Ala.    563; 

Corneal  V.  May,  2  A.  K.   Marsh.  587.  Allen  v.  Lee,   1   lud.  38;  Rockhill  v. 

Herbert  v.  Scofield,   9  N.  J.  Eq.  432;  Spraggs,  9  Ind.  30;  Manning  v.  Jones, 

Thompson  V.  Allen,  2  Ind.  559;  Good-  1    Bush,   368;  Collins  v.   Tillyou,  26 

speed  V.  Fuller,  46   Me.    141;  Gordon  Conn.  308;  Lindsay  v.  Love  y,  26  Vt. 

V.   Gordon,  1   Met.  (Ky.)  285;  Wrig-  123;  Dickson  v.  Kelsey,  3  Blackford, 

ley  V.  Weir,  7  S.  &  R.  311 ;  Bowen  v.  189. 


7G6  The  Law  of  Estoppel. 

Maryland  the  stringent  common  law  rnlc  still  prevails  ;  the  con- 
sideration cannot  be  disproved  by  parol  evidence  or  shown  to 
differ  from  the  description  given  of  it  in  the  deed.' 

§  C29.  The  estoppel  arising  from  recital  of  the  nature  or 
judgment  of  the  consideration  is  ordinarily  confined  to  the  par- 
ties and  does  not  extend  to  third  parties  as  creditors,  or  to  the 
heirs  of  the  grantor.''  But  where  a  grantor  who  has  put  a  deed 
upou  record  in  which  there  is  a  recital  that  the  consideration  was 
paid,  or  acknowledging  the  receipt  of  it,  will  be  estopped  from 
showing  that  it  was  not  paid  as  against  third  persons  who  have 
given  credit  or  taken  a  conveyance  in  reliance  upon  the  admis- 
sion or  acknowledgment  of  the  receipt  of  such  consideration 
contained  in  the  deed,^  and  a  recovery  of  a  purchaser  on  a  war- 
ranty contained  in  a  grant  to  the  vendor,  cannot  be  reduced  be- 
low the  amount  set  forth  in  the  deed  as  having  been  paid  by  the 
grantee/  A  recital  in  a  deed  that  the  purchase  money  had  been 
paid  was  held  conclusive  on  the  grantor  in  favor  of  subsequent 
judgment  creditors  who  might  reasonabl}'  be  supposed  to  have 
been  influenced  by  it  in  trusting  the  grantee  or  giving  him  time/ 
Thus,  where  a  vendor  gave  the  purchaser  a  written  contract  recit- 
ing the  sale,  and  payment  of  $300,  and  agreeing  to  convey  the 
land  upon  the  purchaser's  payment  of  two  notes  for  a  like  amount, 
the  purchaser  transferred  his  rights  under  the  contract  to  another 
party  whom  he  put  in  possession,  and  who  paid  the  notes  accord- 
ing to  the  original  contract.  In  an  action  for  specific  perform- 
ance of  the  contract  by  the  privies  of  the  last  purchaser  ;  the 
original  vendor  was  estopped  from  denying  the  payment  of  the 
three  hundred  dollars  recited  iis  paid  in  his  contract,  as  other 
rights  had  been  acquired  on  the  faith  of  the  recital.*  The  gen- 
eral rule  is,  that  when  a  consideration  is  expressed  in  a  convey- 
ance in  the  absence  of  fraud  or  mistake,  it  may  not  be  denied  or 
disproved,  or  its  adequacy  controverted,   by   the  grantor,  or  his 

1  Small  V.  Baxter,  2  Md.   Ch.   454;  Waters'  Appeal,  35  Pa.  St.  523. 

Ellenger  v.  Crowl,  17  Md.  357.  *  Hunt  v.   Crary,    17   B.    Mon.  73; 

« Meeker  v.    Meeker,   6  Conn.  83;  Greenwault  v.    Davis,    4    Hill.    643; 

Outlaw  V.    Yell,    8  Ark.   345;  Hard-  King  v.  Gibson,  32  111.  348;  Hard  v. 

wick  V.  Cox,    1  N.   J.  L.  247;  Rock-  Denneys,  16  III.  492. 

liill  V.  Spraggs,  9  Ind.  30.  »  Waters'  Appeal,  35 Pa.  St.  523. 

3  Work    V.    Brayton,  5   Ind.    396;  «  SleVart  v.  Metcalf,  68  111.  109. 


Recitals.  ,      767 

lieirs,  or  liis  privies  iu  estate,  to  defeat  the  conveyance  or  the 
uses  and  purposes  therein  expressed.  The  recital  of  the  consid- 
eration is  open  to  contradiction  by  the  creditors  of  the  grantor, 
assailing  the  conveyance  for  fraud.  It  is  also  open  to  explana- 
tion generally,  when  the  grantor  may  be  called  to  answer  in  dam- 
ages for  breach  of  covenant  and  in  other  cases.  But  when  a 
consideration  is  recited  not  merely  nominal,  the  grantor  or  his 
privies,  in  the  absence  of  fraud  or  mistake,  are  estopped  from  a 
denial  of  its  adequacy.' 

§  630.  So  a  man  may  be  estopped  by  a  matter  of  writing, 
which  is  not  of  record.  An  admission  under  seal  is  conclusive 
upon  tlie  obligor  and  estops  him  from  asserting  or  proving  to  the 
contrary.  Thus,  if  a  condition  in  a  bond  recite  that  a  particnlar 
suit  is  pending  in  the  Court  of  the  King's  Bench,  the  obligor  is 
estopped  from  saying  tliere  is  no  snchsuit  there.^  So  if  the  con- 
dition of  a  bond  be  to  perform  the  covenants  in  a  particular 
indenture,  the  obligor  is  estopped  by  his  deed  from  saying  that 
there  is  no  such  indenture.  Where  a  distinct  statement  of  par- 
ticular facts  is  made  in  recitals  in  a  bond  or  other  instrument 
under  seal,  and  a  contract  is  made  with  reference  thereto,  it  is 
not  competent  for  the  parties  bound  by  the  deed  to  deny  the 
recital  in  an  action  between  them.'  Where  a  statute  requires  a 
bond  to  be  taken  in  double  the  valne  of  the  thiniJ:;  concerning 
M'hich  it  is  executed,  and  the  parties  vo]un>tarily  and  without 
fraud  assent  to  the  insertion  of  a  g-ivcn  sum  as  equal  to  double 
the  value,  they  are  estopped  from  denying  that  it  is  double  the 
true   value,   there   being  no   pretense   or  allegation  that  it  was 


1  Morse  V.  Sliattuck,   4  N.  H.  329;  v.  Tierney,  102  U.  S.  415;  Yeaton  v. 

McCrea  v.   Purmort,   16   Wend.  460;  Haines,  43   N.  H.  26;  Arnot   v.  Friel, 

Goodlc'tt    V.    Housell,     G6    Ala.    151;  50  111.  174;  Hamilton  v.  State,  32  Md. 

Thompson  V.  Buchanan,  2 -J.J.Maish.  348;  George  v.  Bischoff,  68  III.    286; 

414;  Howell  V.  Hall.  5  Lea,  405.  Bowen  v.  Reed,  34  Ind.   430;  Falmes- 

MVilloughby    v.    Brooke,    1     Cro.  took  v.  Gilliam,  77  111.  637. 
Eliz.756:  ATaymau  V.  Taylor,  1  Dana,  ^  gt^te    v.    Edna,    1    Wins.   L.    71; 

527;     Bronson   v.    Taylor,  33    Conn.  Decker   v.    .Judson,     16   X.    Y.  439; 

116;  Henderson  v.  Bank,  11  Ala.  855;  Drury  v.  Fay,  14  Pick.   326;  State  v. 

Cordle   v.   Burch,  10   Gratt.  480:  Ed-  Isichol,    30   La.   An.  628;  Bonner  v. 

wards  v.  State,  22  Ark.   303;  Daniels  AAilkinson,  5  B.  &  A.  682;  Phillips  v. 

Cooper,  50  Miss.  722. 


7G8 


The   Law   of  Estoppel. 


obtained  b}^  fraud,  oppression  or  circumvention.'  In  a  suit  upon 
a  forthcoming  bond  for  goods  attached,  the  obligors  are  estopped 
from  denying  admissions  made  in  the  bond  or  controverting  their 
existence.''  No  evidence  is  needed  to  prove  that  there  was  a 
levy,  the  judgment  is  conclusive  evidence  of  the  levy  or  denying 
that  the  property  does  not  belong  to  one  named  as  owner  in  the 
bond.'  Thus  where,  in  pursuance  of  an  arrangement  between 
two  parties,  one  of  whom  had  in  his  possession  personal  property 
claimed  by  the  other,  an  action  was  brought  by  the  former  in  the 
form  of  an  action  to  recover  possession  of  the  property,  and  an 
undertaking  was  given,  entitled  in  the  action,  reciting  that  plaint- 
iff claimed  delivery  of  the  property,  and  undertaking  to  prose- 
cute the  action,  and  to  return  the  proj^erty  if  return  should  be 
adjudged,  etc.  The  sureties  to  the  undertaking  are  estopped,  in 
an  action  on  the  bond,  fi-om  questioning  the  recital,  although 
they  had  no  knowledge  that  the  defendant  in  the  replevin  suit 
was  not  in  possession  of  the  property,  or  that  the  statutory  pro- 
ceedings were  not  to  be  had,  or  the  undertaking  used  to  obtain 
delivery.  And  so,  wheie  some  stone  were  lying  upon  ground 
leased  by  plaintiff,  defendant  sent  men  who  commenced  work 
cutting  stone.  The  plaintiff  thereupon  commenced  an  action  of 
replevin,  and  the  sheriff"  took  possession  of  the  stone.  The 
defendants  gave  a  statutoiy  undertaking  in  which  it  was  recited 
that  the  stone  had   been  taken   from   their   possession,  asking  a 


»Speake  v.  U.  S.,  9  Cranch,  28; 
Bates  V.  Merrick,   2  Hun,  5(j9. 

"•'May  V.  Johnsou,  3  In(1.449;  Mc- 
Millan V.  Dauii,  18  Cal.  389;  Frost  v. 
White,  14  La.  An.  140;  Sliaw  v.  Mc- 
Cullough.  ;]  W.  Va.  260;  Henderson 
V.  Bank,  11  Ala.  855;  Sparks  v.  Shrop- 
shire, 4  Bush,  550;  Jones  v.  Pearly,  B 
Iowa,  52;  Bank  v.  .lacoby,  17  N.  Y. 
Supreme  Ct.  144;  Harrison  v.  AVil- 
kius,  69  N.  Y.  412;  Diekerson  v. 
Anderson,  9  Mo.  156;  Cohen  v. 
Broughton,  54  Ga.  296;  Brande"v. 
Bobo,  12  La.  An.  616;  Sullivan  v. 
Pierce,  10  Ark.  500;  Sponenbarger  v. 
Lemert,  23  Kas.  55;  Haxtuu  v.  Sizer, 
23  Kas.  310;  Bursley  v.  Hamilton,  15 


Pick.  40;  Staples  v.  F'ilmore,  43  Conn. 
510;  Iiutle('.ge  V.  Corbin,  10  Ohio  St. 
478;  Ilannesso  v.  Bonnell,  23  N.  J. 
L.  159;  Bacon  v.  Daniels,  116  Mass. 
174;  Gniy  v.  McLain,  17  111.  404; 
Door  V.  Clark,  7  Mich.  310;  Jewett  v. 
Torr}-,  11  Mass.  219.  Lyman  v. 
Lyman,  11  Mass.  317;  Price  v.  Ken- 
nedy, 16  La.  Ann.  78;  Inman  v.  Si  rat- 
tan, 4  Bush,  447;  McMillan  v.  Dana. 

18  Cal.    347;  Roebuck  v.    Thornton, 

19  Ga.  151;  Mead  v.  Figh,  4  Ala.  279; 
Drake  on  Attachment,  i^  339;  Hundley 
V.  Filbert,  73  Mo.  34;  Lucas  v.  Beebe, 
88  111.  427;  State  v.  Nicol,  30  La.  An. 
628. 

3  Haxtun  v.  Sizer,  23  Kas.  310. 


Recitals.  769 

re-deli veiy,  and  they  were  re-deli vei-ed.  By  giving  the  under- 
taking, the  defendants  were  estopped  from  setting  up  tliat  the 
stone  had  not  been  in  their  possession.'  So  if  a  condition  be  that 
he  shall  paj  a  sum  of  money  for  which  he  is  bound  in  a  particu- 
lar recognizance,  he  is  estopped  from  denying  that  there  is  such 
a  recognizance. 

§  631.  No  one  who  has  bound  himself  by  an  instrument 
under  seal  for  the  fidelity  and  good  conduct  of  another,  in  a 
private  trust  or  public  duty,  can  escape  from  the  liability  thus 
assumed,  under  cover  of  an  allegation  that  his  principal  was  not 
duly  designated,  or  elected,  or  was  subject  to  some  legal  disquali- 
fication which  should  have  prevented  him  from  accepting  or 
administering  the  oflice.*  Thus  in  a  suit  on  a  sheriff's  bond, 
the  defendants  are  estopped  by  their  own  acknowledgment  on 
the  bond,  from  denying  that  the  person  described  therein  as 
sheriff  was  such  at  its  date,  and  the  law  will  presume  that  he 
contiinied  so  during  the  terra  for  which  he  was  elected.''  Where 
one  has  voluntarily  signed  a  guardian's  bond  which  has  been 
accepted   by  the  probate  court  he  is  estopped  to  set  up  that  the 

*  Diossy  V.   Morgan,  74  N.  Y.  11.  Jones,  54  Iowa,  699;  Bassett  v.  Crafts, 

"People  V.    Norton,  9  N.  Y.  176;  129  Mass.  513;  Johnston  v.  Smith,  25 

Seiple  V.   Elizabeth,  27  N.  J.  L.  407;  Hun,  171;  Merely  v.  Metamora,  78  111. 

ilorn  V.  Whittier,  6  N.  H.  88;  U.  S.  394;    Chicago    v.    Gage,  95    111.  625; 

V.   Bradley,    10    Pet.    343;     State     v.  Roper  v.  Lodge,  91  III.  518;  Stovall  v. 

Rhodes,  6  Nev.  352;   Love  v.  Rock-  Banks,  10  Wall.  583;  State  v.  Gorman, 

well,  1    Wis.  382;   Bank   v.  Hamblet,  75  Mo.  370;  State  v.'  Williams,  77  Mo. 

35  Me.  491;   State  v.  Cooper,  3  Miss.  463;  Pharr  v.   McHugh,  32  La.  Ann. 

615;  Whited  v.  Governor,  6  Port.  335;  1280;  Police  Jury  v.  Haw,  2  La.  Ann. 

McClure  v.    Commonwealth,   82   Pa.  41;  Ins.  Co.  v.  Findley,  59  Iowa,  591; 

St.  169;  Hoke  v.  Hoke,  3  W.  Va.  561;  Drury  v.  Fay,  14  Pick.  326;  Fogarty 

Shroyer  v.  Richmond,  16  Ohio  St.  455;  v.    Ream,    100    111.    366;    Cawley    v. 

Cutler  v.  Di.von.  8  Pick.  386;    Switzer  People,95  111.  249;  Rinkstaff  v.  People, 

v.    Hay,  2   Gray,   49;   Kavannagh   v.  59  111.  148;  Meyer  v.  Wiltshire,  92  111. 

Sunders,  8  Me.  442;  Stebbinsv.  Smith,  395;  West  v.  Thompson,  49  Mo.  188; 

4  Pick.    97;   Parker   v.  Campbell,  21  School    Directors   v.    Brown,  33   La. 

Tex.  763;  Albee  v.  People,  22  111.  533;  Ann.  383;  Brown  v.  Grover,  6  Bush, 

Lucas  V.  Shepherd,  16  Ind.  368;  1;  Price  v.  Kennedy,  16  La.  Ann.  78. 
Hoboken  v.  Harrison,  30  K  J.  L.  73;  ^  Norris  v.  State,  22  Ark.  524;  State 

McWhorter  V.  McGehee,  1  Stew.  548;  v.    Swigart.32  Ark.  528  ;    Edward    v. 

Burnett  v.  Henderson,  21   Tex.    588;  State,  22  Ark.  303;  Badgett  v.  Martin, 

Longacre  v.  State,  3  Miss.  37;  Marshall  12  Ark.  730;  Brown  v.  Grover,  6  Bush, 

V.  Hamilton, 41  Miss.  229;  Boon  Co.  v.  1;  Shaw  v.  Haveklupt,  21  111.  127. 
Vol.  I.— 49 


770  The  Law  of  Estoppel. 

court  did  not  order  it  made.'  The  sureties  in  an  official  bond  are 
estopped  to  deny  the  official  character  of  their  principal.  And 
Upon  a  suit  brought  upon  the  bond,  a  tax  collector  and  his  sure- 
ties are  estopped  to  deny  his  official  character  therein  recited.^ 

§  G32.  When  the  principal  and  surety  bind  themselves  jointly 
and  severally  on  a  bond,  although  there  is  no  express  adipission 
on  the  face  of  the  instrument  that  all  are  principals,  the  surety  is 
estopped  in  an  action  at  law  to  deny  that  he  is  principal.  The 
same  rule  applies  in  equity  unless  it  is  shown  that  there  was 
fraud  or  mistake.^  The  recital  in  an  official  bond  estops  the  obli- 
gor from  denying  it,  and  it  is  not  necessary  to  produce  the  com- 
mission of  the  officer  or  a  copy  thereof.  In  an  action  upon*  a 
prison-bounds  bond  the  defendant  is  estopped  to  deny  the  exist- 
ence of  such  a  judgment  as  that  recited,  and  the  plaintitf  need 
not  produce  the  judgement  record.'  Where  a  bond  is. given  by 
A.  at  the  request  of  13.,  and  this  fact  is  expressly  recited  in  their 
bond,  A.  cannot  question  its  validity ;  he  is  estopped  by  his  bond, 
and  where  parties  bind  themselves  as  principals,  they  are  estopped 
from  denying  facts  which  they  have  solemnly  admitted  under 
their  seal.  Where  the  owner  has  a  ship,  which  has  been  attached, 
delivered  up  to  him  npon  an  appraisement,  and  he  gives  a  stipu- 
lation according  to  the  course  of  admiralty  proceedings  to  refund 
that  value,  together  with  damages,  interests  and  costs,  he  is  not 
at  liberty  to  insist  afterwards  that  the  ship  is  of  less  value  in  his 


'  McClure  v.  Commonwealth,  82  Pa.  dell  v.  Fleming,  8  Graj',  613;   Mayor 

St.  167;  Hoke  v.  Hoke,  3  W.  Va.  501;  v.  Merritt,  27  La.  Ann.  068;  People  v. 

Gray  v     Mills,  83   Ind.  126;   Gray  v.  Jenkins,  17  Cal.  500;  Byrne  v.  State. 

State,  78  Ind.  68;  Hayden  v.  Smith,  50  Miss.  688,   Haiben  v.  Bell,  54  Ala. 

49   Conn.  84;   Williamson   v.    Wood-  389;  Jones  v.  Gallatin,  78  Ky.  491. 

man,  73   Me.    163;   Gray   v.  State,  78  ^  Sprigg  v.    Bank,    10   Peters,  257; 

Ind.    68;    S.    C,    41    Am.    Pep.    545;  same  case,  14  Pet.  201;  S.  C,  1  MeL. 

Harbin   v.  Bell,  54   Ala.  889;   Daven-  178,  384. 

port  V.    Reynolds,    6  111.    App.    532;  *  Bruce  v.  U.  S.,  17  How.  437. 

Sebastian  v.  Biyau,  21  Ark.  447.  ^  Allen  v.    Magruder,  3   Cranch  C. 

^  Parker   v.  Campbell,  21   Tex.  763;  C.    R.    6;   Allen  v.    Luckett,  3   J.  J. 

Burnett   v.    Henderson,  21   Tex.  588;  Marsh.  164;  Keller  v.  Beckler,  4  J.  J. 

Borden  v.  Houston,  2  Tex.  594;  Fake  Marsh.  445;  Stockton  v.  Turner,  7  J. 

V.  AVhipple,  39  Barb.  339;   Great  Bar-  J.  Marsh.  192;  Taliafero  v.  Steel.  14 

rington  v.  Austin,  8  Gray,  444;  Wen-  La.  Ann.  656;  State    v.  Kicol,  30  La 

Ann.  628. 


Recitals.  771 

hands,  or  that  he  has  discharged  other  liens  diminishing  the 
vahie,  for  which  the  owners  were  personally  liable  in  solido  in 
the  first  instance.' 

§  633.  Sureties  in  an  undertaking  which  purports  to  have 
been  given  upon  an  application  to  discharge  an  attachment,  are 
estopped  from  denying  recitals  in  the  undertaking,  which  state 
that  an  attachment  was  issued,  and  that  an  application  had  been 
made  for  its  discharge.*  The  same  principle  applies  to  injunt?- 
tion,  supersedeas,  stay  and  replevin  bonds.^  Thus,  a  party  signing 
a  twelve  months'  bond  is  not  permitted,  when  execution  issues 
thereon,  under  Art.  720,  C.  P.,  to  arrest  the  writ,  on  the  ground 
that  there  was  no  seizure,  advertisement  and  sale  of  the  property 
in  the  case  in  which  the  bond  was  furnished,  the  bond  recitine: 
that  all  the  requirements  of  the  law  had  been  complied  with. 
By  signing  the  bond,  such  party  has  cured  all  the  irregularities, 
if  any  existed.*  So  when  a  practising  attorney  tendered  himself 
as  a  surety  on  the  bond  of  client  as  special  administrator,  and  he 
was  accepted  as  such  by  the  clerk  of  the  court,  he  must  perform 
the  conditions  of  the  bond,  upon  which  he  voluntarily  entered  as 
surety,  notwithstanding  statutory  provisions  or  rules  of  court 
prohibiting  an  attorney  from  becoming  sureties  for  their  clients. 
He  cannot  take  advantage  of  his  own  wrong,  by  withdrawing 
afterward. 

§  634.  The  sureties  in  an  administration  bond  are  estopped  by 
a  recital  that  their  principal  had  been  duly  appointed,  from 
denying  that  the   fact  was  as  averred,^  and  also  in  a  bond  where 

'-  The  Virgin  v.  Vyfbius,  8   Pete^fs,  348;   Jones  v.   Henry,  84  N.  C.    320; 

538;  Sullivan  v.  Pierce,  10  Ark.  500.  S.  C,  37  Am.  R.  634;  Bank  v.  Fiesh- 

^  Colemau  v.  Bean.  3  Keyes,  94;   tt.  man,  22  W.  Va.  317;  Gomilla  v.  Culli- 

C.,32  How.  Pr.  370;  People  v.  Mc-  ford,    20   F.     E.    734,     Goodman   v. 

Cumber,    27    Barb.    639;    Pierce  v.  Litaker,  84  N.  C.  8;  S.  C,  37  Am.  R. 

Whiting,  63  Cal.  538.  602 

*  R.    R.    Co.    V.    Vanderworker,  19  ■*  Bracey  v.    McGuire,  34  La.  Ann. 

W.    Va.    205;   U.    S.    v.    Hodson,    10  997;  Wafer  v.  Wafer,  7  La.  Ann.  542: 

Wall.    395;   State    v.  Horner,  37   Md.  Coons  v.  Graham,  12  Rob.  (La.)  209; 

569;  Hardy  V.  Coe,  5  Gill,  189;  Strange  Jones   v    Frellsen, 'J   Rob.   (La.)   185.; 

V.  State,  58   Md.  27;   Keen   v.    Whit-  Roberts   v.  Zansler,  34  La.  Ann.  205. 

tington,  40  Md.  489;  Gunther  v.  State,  '  '"  Cutler  v.  Dickinson,  8   Pick.  3S6; 

31  Md.    21;  Burgess  v.  Lloyd,  7  ^Id.  Fogarty  v.  Ream,  100  111.  366;  Stovali 

179;   Hamilton  v.  Hardesty,    32  Md.  v.    Banks,   10  Wall.   583;  Mosely  v_ 


772  The  Law  of  Estoppel. 

there  was  a  recital  that  omo  of  the  obligors  was  sheriff  and  tlie 
others  were  his  deputies.'  In  like  manner  the  obligor  in  a  bond, 
conditioned  for  the  performance  of  the  covenants  in  an  indenture, 
or  the  faithful  discharge  of  the  duties  of  an  agent,  will  not  be 
allowed  to  prove  or  allege  that  there  is  no  such  deed  or  agency  as 
the  condition  avers.'  In  such  cases  the  estoppel  is  equitable  as 
well  as  legal,  because  it  would  be  unjust  to  permit  a  person  who 
has  aided  another  to  obtain  access  to  a  place  by  a  pledge  that  he 
will  behave  himself  properly  when  there,  to  point  ont  the  reasons 
why  he  should  not  have  been  admitted,  after  it  was  too  late  to 
correct  the  error  ;  and  while  a  recital  couched  in  general  terms  or 
relating  to  past  transactions,  will  not  ordinarily  operae  as  an 
estoppel,  no  st;itement  can  be  contradicted  which  was  meant  to 
be  a  basis  of  a  contract  or  conveyance,  and  is  necessary  to  render 
it  effectual.' 

§  {5:'5.  A  recital  orallegn-ion  in  a  title,  that  A.  had  purchased 
out  all  the  rights  of  his  said  son  in  said  firm,  estopped  tlie  com- 
plainant from  questioning  that  fact.*  If  a  vendor  states  under 
seal  that  he  has  "  bargained,  sold,  and  delivered  "  the  property  to 
the  vendee,  he  is  estopped  in  an  action  of  trover  brought  by  the 
vendee  for  the  property,  to  deny  the  delivery. »  A  master  of  an 
apprentie-e  is  estopped  by  the  recital  in  the  indentures  as  to  the 
age  of  the  boy.'      So  where  F.  agreed  to  payM.'s  vendors  certain 

M^lainora,    78    111.    394;    Brown    v.  Brinneg.ir    v.    Chaffiu,    3    Dev.    108; 

Grover,  6  Bush,  1 ;  Chicairo  v.  Gage,  Stiongliill    v.    Buck,    14    Q.  B.   771; 

95  111.   625;  Franklin   v.   Derri(st,^13  Jackson   v.  Waldron,  13    Wend.  178; 

GiHtt.  257;  Cawlcy  v.  People,  95   111.  Aclicily  v.  Vernon,  Wilies,  163;  Lain- 

249;  Bruce  v.    U.   S..    17   How.    437;  son  v.  Tremere,  1  A.  &  E.  793;  Hosier 

Sbroycr  v.    Richmond,    16   Ohio   St.  v.  Searle,  2  Bos.  &   P.  299;   Doughty 

455;    Roper    v.    Lodge.    91    111.    518;  v.  Neale,  2  Keb.  471;  Pain  v.  Shel- 

Norris  v.  State,  22  Ark.  524;   Rinks-  hoppe,  All.  13;  Hart  v.  Buckminster, 

tafi"  V.  People,  59  111.  148;  Johnston  All.     53;     Willoughby     v.     Brooke, 

V.    Smith,    25  Hun,  171;   Ins.  Co.  v.  Cro.   Eliz.   756;   Rainsford   v.   Smith, 

Findley,    59    Iowa,    591;     White    v.  Dy.  196;   Hill  v.  Waterworks,  2  B.  & 

Weatherbee,  126  Mass.  450.  A.  544;   Horton  v.  Commrs.  7  E.xchq. 

'  Cox   V.   Thomas,   9   Graltau,  312;  780;  Brown  v.  Roules,  21  Md.  11. 

Cecil  V.  Earl)%  10  Gratl.  198.  *  Armstrong  v.  Fahnestock,  19  Md. 

»  Ins.   Co.   V.   Colton,  26  Conn.  50;  58;  Vincent  v.  Starks,  4  AVis.  458. 

Collins  V.  Mitchell,  5  Fla.  364;  Egbert  ^  Nevctt  v.   Berry,  5  Cranch  C.  C. 

V.  Darr,  3  W.  &  S.  517.  R.  291. 

^Shelley   v.    Wright,  9   Wilies,  11;  *  McCutchin  v.  Jameson,  1   Crancb 

Young    V.    Raincock,   7    C.    B.    310;  C.  C.  R.  348. 


Recitals.  773 

purchase  money  in  consideration  of  M^hicli  the  title  to  the  prop- 
erty should  be  vested  in  F.,  and  held  nntil  repaid  by  M.,  in 
accordance  with  the  contract  made,  after  which  F.  was  to  convey 
to  M.  the  recital  of  F/s  contract  vesting  the  title  temporarily  in 
him  estopped  hira  from  denying  the  rights  of  M.'  A  covenant 
expressed  by  way  of  recital  is  as  obligatory  as  if  expressed  in  the 
body  of  the  agreement.*  A  party  giving  a  receipt  for  property 
seized  by  an  officer  npon  an  execution  or  attachment,  is  estopped 
from  setting  up  Against  the  officer  that  the  property  was  his  own,  or 
that  of  any  other  person  than  the  execution  or  attachment  debtor ; 
nor  can  he  show  that  the  property  was  worth  less  than  the  debt, 
which  in  default  of  returning  the  property  he  covenanted  to  pay.' 
His  liability  to  the  officer  is  as  broad  as  his  covenant,  and  is 
absolute  and  dischargeable  only  by  act  of  God  or  the  public 
enemy.  Bnt  the  obligation  ceases  to  be  binding  as  soon  as  the 
goods  are  surrendered,  and  leaves  the  obligor  free  to  show  who 
is  the  owner,  in  any  subsequent  proceeding.*  So  where  a  party 
gives  a  certificate  of  deposit  for  "  cunent  bank  notes  "  he  is 
estopped  from  showing  that  the  funds  were  not  current,  or  from 
claiming  the  right  to  pay  in  anything  but  the  same  character  of 
fund.' 

§  636.  It  is  not  essential  to  the  estoppel  of  instruments  under 
seal  that  the  admissions  should  be  made  in  terms;  it  is  sufficient 
if  the  intention  of  the  parties  is  to  place  the  existence  of  a  fact 
beyond  question  or  make  it  a  basis  of  the  contract  if  so  clearly 
expressed,  as  to  leave  no  room  for  doubt.  Thus  a  condition  in  a 
bond  that  one  of  theobligors  shall  well  and  faithfully  execaue  his 
office,  as  collector,  estops  him  from  denying  that  he  held  the 
office  or  was  bound  to  discharge  the  duties  with  fidelity,  although 
the  bond  does  not  recite  or  allege  that  he  was  collector,  and  leaves 
that  fact  to  be  gathered  by  implication.*  A  recital  in  a  will 
operates  as  an  estoppel  to  parties  claiming  under  it.     Where  the 


1  Fessler's  Appeal,  75  Pa.  St.  488.         v.  Odell,  3  Hill,  215. 

"Beallev.  Shoals,  1  A.  K.  Marsh.         *  Norris  v.    Norton,    19  Ark.    319; 
475.  Decherd   v.    Blanton,   3   Sneed,    373; 

3  Cornell  v.    Dakin,  38  N.  Y.  253;      Sterling  v.  Arnold,  54  Ga.  690. 
People  V.  Reeder,  25  N.  Y.  302;  Dezell         =  Osgood  v.  McConncll,  32  111.  74. 

6  Billingsl}^  V.  State,  14  Md.  369. 


774  The  Law  of  Estoppel. 

defendant  made  a  deed  stating'  that  he  had  bargained,  sold,  and 
delvoered  certain  personal  property  to  the  plaintiff,  he  was  held 
to  be  estopped  from  denying  the  delivery  in  an  action  of  trover.' 
A  receipt  that  declares,  that  this  receipt  shall  be  conclusive  evi- 
dence against  me,  as  to  the  receipt  of  property,  its  value  and  my 
liability  under  all  circumstances  to  said  officer,  estops  the  receiptor 
from  denying  that  the  property  was  the  debtor's,  and  the  officer, 
in  an  action  against  him  by  the  creditor  for  refusing  to  deliver 
the  property  attached,  to  be  taken  on  execution,  is  estopped  from 
setting  up  as  a  defense,  that  the  property  did  not  belong  to  the 
creditor  but  to  the  receiptor,'  and  is  estopped  from  denying  the 
value  stated  in  the  receipt.'' 

§  637.  There  is  a  distinction  between  the  effect  of  a  particu- 
lar and  general  recital.  It  is  laid  down^  that  if  the  condition  of 
the  bond  contain  a  generality  to  be  done,  the  party  shall  not  be 
estopped  to  say  that  there  was  not  any  such  thing,  as  if  the  con- 
dition of  a  bond  be  to  perform ;  all  agreements  set  down  by 
A.,  the  obligor  may  say  that  there  was  no  agreement  set  down 
by  A.,  for  the  condition  is  general,  or  if  it  be  to  carry  away  all 
the  marl  in  a  close,  he  may  say  there  was  no  marl  there.  But  in 
all  cases  where  the  condition  of  a  bond  has  reference  to  a  partic- 
ular thing,  the  obligor  shall  be  estopped  to  say  that  there  is  no 
such  thing.  The  reason  of  this  rule  seems  to  be  the  same  as  that 
heretofore  laid  down  in  reference  to  estoppels  by  matter  of  record, 
that  is  that  an  estoppel  must  be  certain. 

§  638.  A  mere  general  recital  cannot  control  the  plain  words 
of  the  granting  part  of  a  deed.  Where  a  deed  of  assignment  by 
a  debtor,  in  trust  for  creditors,  recited  that  the  debtor  was  desir- 
ous to  convey  his  property  to  secure  three  of  his  creditors  named, 
in  full,  and  the  residue  for  the  benefit  of  his  other  creditors,  and 
in  the  body  of  the  deed  the  assignment  was  expressed  to  be  in 
trust  to  pay  and  satisfy  those  three  creditors  and  three  others 
named,  and  the  surplus  divided  among  his  other  creditors,  it  was 

'  Den  v.  Cornell,  3  John.  Cas.  174.        Center  v.  Bank,  22  Ala.  143. 

'  Nevett  V.  Berry,  5   Crauch  C.  C.         »  Brown  v.  Gleed,  33  Vt.  147;  Boom 
291;  McWliorter  v.  McGehee,  1  Stew.      Co.  v.  Wilkins,  27  Me.  345. 
548;  Crump  v.  Bennett,  2  Litt.  209;         *  Enscol  v.  Dunn,  44  Conn.  93. 

« 1  RoUe's  Abridgment,  Est.  873. 


Recitals.  775 

held  that  the  three  creditors  named  in  the  recital  were  only  enti- 
tled to  be  paid  ratably  with  the  other  three  creditors,  in  propor- 
tion to  their  demand,  out  of  the  proceeds  of  the  property 
assigned.  The  general  recital  here  was  of  an  intention  which 
was  inconsistent  with  the  plain  language  of  the  instrument,  and 
could  not  control  the  latter.'  A  joint  or  joint  and  several  obligor 
may  aver  that  he  is,  in  point  of  fact,  a  surety,  and  set  up  any  act 
of  the  creditor  tending  to  impair  the  right  of  recourse  for  indem- 
nity against  the  principal  as  a  defense  to  an  action  for  the  recov- 
ery of  the  debt,  for  the  reason  that  a  plea  of  this  kind  does  not 
consist  in  a  denial  of  the  terms  of  the  contract,  but  in  showine: 
the  existence  of  certain  collateral  relations  between  the  parties 
which  the  creditor  has  impliedly  sanctioned,  and  is  therefore 
bound  to  preserve  uninjured.''  This  is  especially  applicable  in 
equity  when  the  language  of  an  obligor  is  so  clear  as  to  leave  no 
doubt  that  the  obligors  intended  to  be  or  were  meant  to  be  pri- 
marily liable,  the  ceal  estops  any  contrary  allegation,  and  a 
surety  who  binds  himself  expressly  as  principal,  and  not  as 
surety,  is  estopped  at  law,  and  will  be  precluded  in  equity  from 
denying  that  his  true  character  is  in  accordance  with  the  tei'ms 
of  the  instrument." 

§  639.  In  the  absence  of  any  contract  as  to  novelty  or  useful- 
ness or  value  of  any  invention,  the  recital  in  the  letters  patent 
granted  by  the  United  States,  that  it  is  a  new  and  useful  inven- 
tion, is  conclusive  in  State  courts.*  An  agreement  made  with 
a  patentee  to  manufacture  his  machines  under  his  patent  upon 
certain  conditions  mentioned  .therein,  and  making  and  selling 
such  machines  under  the  patentee's  title,  estops  the  manufacturer 
from  alleging  the  invalidity  of  the  patent  as  a  defense  to  an 
action    by  'the    patentee    for    an    account    under    the    contract.^ 


•  Huntington   v.    Havens,    5  John.  Iowa,  17. 

Ch.  23.  3  Sprigg  v.  Bank,  14  Pet.  207. 

"Harris    v,    Brooli,    21    Pick.    195;  *  Elmer  v.  Ponnoll,  40  Me.  430;  Ball 

Stone  V.  Cnmpton,  3  M.   &  W.   583;  v.  Murray,  10  Pa.  St.  113;   Cowan  v. 

Bank  v.  Lcavitt,  5  Ohio  St.  17;  Stone  Mitchell,  11  Heisk.  87. 

V.  Compton,  5  Bing.  N.  C.  142;  Bank  ^  Kiugsman  v.  Parkhurst,  18  How. 

V.  Rathbone,  26  Vt.  19;  Bell  v.  Banks,  289;   Cutler  v.  Bower,  11   Q.  B.  973; 

3  Scott  N.  R.  503;   Bank  v.  Hoge,  6  Hills  v.  Lanning,  9  Exchq.  256;  Sharp 


776  The  Law  of  Estoppel. 

Against  a  carrier  issuing  a  bill  of  lading,  recitals  therein  arc  con- 
clusive, and  he  is  estopped  to  deny  theui  to  one  making  advances 
in  faith  thereof,  where  he  has  actually  received  the  property.' 

V.  Taylor,  2  Phill.  Ch.  801 ;  Tenant  V.  mer,    19  F.    R.    322;    Underwood   v. 

Elliott,  1  B.  &  P.  3;  Faulks  v.  Kamp,  Warren,  21  F.  R.  593;   Hyatt  v.   In 

17  Blatchf.  432;  Evory  v.  Candee,  17  galls,  49  N.  Y.  Super.  375. 
Blatchf.  200;  Telegraf  Co.   v.  Him-         '  Bank  v.  R.  R.,  30  Kans.  519. 


Title  by  Estoppel.  777 


CHAPTEE  X. 

TITLE  BY  ESTOPPEL. 

OF   THE   RULE   THAT   THE     INTEREST   WHEN    IT   ACCRUES     FEEDS    THE 

ESTOPPEL. AFTER   ACQUIRED   TITLE    INURES   TO   THE   BENEFIT  OF 

THE    GRANTEE. EXCEPTIONS   TO    THIS    RULE. 

Section  640.  The  ordinary  effect  of  an  estoppel  is  confined 
to  precluding  parties  from  contradicting  the  recital  or  admission 
on  which  the  estoppel  is  founded,  and  this  is  implied  from  the 
definition  of  the  word.  The  most  striking  instances  of  an  estop- 
pel by  deed  are  where  a  party  without  any  title  to  land  under- 
takes to  convey  it,  covenanting  as  to  title,  and  afterwards  acquires 
title  to  the  same  land  by  descent  or  purchase.  In  such  cases, 
arising  on  the  conveyance  of  land,  it  acquires  a  further  and  tran- 
scendent power  which  binds  the  estate  and  confers  a  title  where 
none  passed  originally  by  operation  of  the  deed.  If  a  grantor's 
covenant  is  of  warranty  and  entitles  a  covenantee  to  recover  for 
its  breach  just  as  much  of  the  covenantor  as  he,  the  covenantor, 
would  recover  of  the  tenants  of  the  covenantee,  if  he  prevailed 
by  enforcing  his  claim  to  the  land,  the  law  to  avoid  circuity  of 
action,  permits  the  tenant  to  avail  himself  of  this  covenant  to 
rebut  the  covenantor's  claim  upon  the  land,  and  prevents  the 
grantor  from  setting  up  a  claim  to  the  estate  by  his  after  acquired 
title.'  Perhaps  a  more  proper  mode  of  stating  it  would  be,  that 
the  warranty  of  the  grantor  is  as  if  a  particular  recital  or  aver- 
ment had  been  inserted  in  his  deed,  and  he  was  thereby  estopped 
from  asserting  its  efficacy,*     While  an  estoppel  will  not  grow  out 

»  Kunally  v.   Wliite,    3  Met.  (Ky.)  3  Pick.  52;  Oakes  v.  Marcy  10  Pick. 

589;  Washburn  on  Real  Property.  495;  White  v.  Patten,  24  Pick.  324 

2Jacksonv.  Bradford,  4  Wend. 619;  Blanchard    v.    Ellis,    1    Gray,     195 

Dart  V.  Dart,  7  Conn.  256;    Irvine  v.  Jackson    v.    Hubbell,  1    Cow.    613 

Irvine,  9  Wall.  G25;  Mickles  v.Town-  Jackson  v.   Waldron,  13  Wend.  189 

send,  18  N.  Y.  577;  Somes  v.  Skinner,  Kimball  v.  Blaisdell,  5  K    H.    535 


778 


The  Law  of  Estoppel. 


of  a  recital  unless  it  is  direct  and  jjrecise,  and  manifests  an  inten- 
tion to  render  the  fact  set  forth  a  part  or  basis  of  the  conveyance 
or  agreement.  A  recital  that  a  grantor  has  a  particular  estate  or 
owns  the  interest  which  the  deed  purports  to  convey,  will  not 
only  estop  him  and  his  heirs  from  denying  what  he  has  thus 
averred,  but  will  take  elTect  on  an}'  title  to  the  land  which  he 
may  subsequently  acquire,  and  transfer  it  to  the  grantee.'  If  a 
vendor  has  no  title  at  the  date  of  his  deed,  but  acquires  a  good 
title  afterward,  the  title  thus  acquired  inures  to  the  beneiit  of 
the  first  vendee  by  estoppel.''  So,  where  one  conveys  land  with 
warranty,  bat  without  title,  and  afterwards  acquires  one,  his  first 
deed  works  an  estoppel,  and  passes  an  estate  to  the  grantee,  the 
instant  the  grantor  acquires  his  title,  not  only  against  the  grantor 
and  those  claiming  undei*  him,   but   also   against  strangers  who 


Bogy  V.  Shoab,  13  Mo.  378;  Wade  v. 
Lindsay,  6  Met.  413;  Cole  v.  Raymond, 

9  Gray,  217;  Rawle  on  Gov.  for  Title. 
'  French  V.  Spencer,   21  IIow.  228; 

Blanchard  v.  Ellis,  1  Gray,  198;  Berry 
V.  Kline,  12  Cusb.  18;  Goodsou  v. 
Beacham,  24  Ga.  150;  O'Bannon  v. 
Paremour,  24  Ga.  589;  Chamberlain 
V.  Meeder,  16  N.  H.  381;  King  v.  Gib- 
son, 33  111.  353;  Kimball  v.  Schaff,  40 
N.  H.  190;  Burton  v.  Reeds,  20  Ind. 
93;  McCusker  v.  McEvey,  9  R.  L  528; 
Plimpton  V.  CVmverse,  42  Vt.  712;  Doe 
V.  Duwdall,  3  lloust.  369;  Irvine  v. 
Irvine,  9  Wall.  617;  Bu-h  v.  Marshall, 
6  How.  284;  Ilenshaw  v.  Bissell.  18 
Wall.  255;  McCarthy  v.  Mann,  19 
Wall.  20;  Robertson  v.  Sharpton,  17 
S.  C.  592;  Rccder  v.  Craig,  3McCord, 
411;  Camp  v.  Grider,  6S  Cal.  20; 
Christy  v.  Dana,  42  Cal.  179;  Kirkal- 
die  v.  Lariabee,  31  Cal.  445;  Clark  v. 
Baker,  14  Cal.  612:  Locker  v.  Riley, 
SON.  J.   E.   101;  Scuddy   v.   Shaffer, 

10  La.  An.  133;  Myers  v.  Croft,  13 
Wall.  291;  Kuowles  v.  Kennedy,  82 
Pa.  St.  444:  Wolf  v.  Goddard.  9 
Watts,  547;  Baxter  v.  Bradbury,  20 
Me.  260;  Brundred  v.  Walker,  12  2s. 


J.  L.  140;  Nixon  v.  Carco,  28  Mich. 
414;  Van  Renssalaer  v.  Kearney,  11 
How.  297;  Walker  v.  Finley,  7  Jones, 
22;  Goodrich  v.  Bryant,  5  Sneed,325; 
Jackson  v.  Bull,  1  Johns,  81 ;  Cun- 
ningham v.  Pattee,  99  Mass.  248;  Jack- 
son V.  Murray,  12  Johns.  201;  McGee 
v.  Eustis,  5  S.  &  P.  420;  Brown  v. 
McCormick,  6  Watts,  60;  Reiiler  v. 
Craig,  3  McCord,  411;  Plielps  v.  Kel- 
logg, 15  111.  131;  Robertson  v.  Robert- 
son, 9  Watts,  22;  Griffith  v.  Huston,  7 
J.  J.  Marsh.  385;  Jackson  v.  Stevens, 
16  Johns.  110:  Dobbins  v.  Cruger, 
108  III.  188;  Hannah  v.  Collins,  94 
Ind.  201;  Karnes  v.  Wingate,  94  Ind. 
594;   Smith  v.  Slieely,  12  Wall.  338. 

-  Jackson  v.  j\[atsdorf,  11  Jolins.  91; 
Somes  V.  Skinner,  3  Pick.  52;  Terrett 
V.  Taylor,  9  Cranch,  43;  Wark  v. 
Willard,  13  ]S.  II.  389;  Comstock  v. 
Smith,  13  Pick.  110;  White  v.  Patten, 
24  Pick.  324;  Trull  v.  Eastman,  3 
Met.  121;  Allen  v.  Parish,  3  Ohio, 
107;  Bond  V.  Swearingen,  1  Ohio,19U; 
Lowry  v.  Williams,  13  Me.  281 ;  .lack- 
son  V.  Wright,  13  Johns.  193;  Jack- 
man  v.  Hoffman,  9  Cow.  271;  Baxter 
V.  Bradbury,  20   Me.  269;  Warburton 


Title  by  Estoppel. 


779 


came  in  after  the  deed  creating  the  estoppel.*  Where  the  grantor 
bj  deed  of  warranty  had  a  title  which,  at  the  time  of  the  con- 
veyance, was  defective,  but  afterwards  acquired  an  indefeasible 
title,  this  title  inured  immediately  to  the  grantee,  and  the  latter 
could  not  elect  to  reject  it  and  recover  the  consideration  money 
paid,  in  an  action  for  breach  of  covenant  of  seisin. 

§  641.  There  were  two  classes  of  cases  in  which  an  estate 
actually  passed  by  estoppel  under  the  old  civil  law.  The  first 
was  where  the  mode  of  assurance  was  a  feoffment,  a  fine  or  a 


V.  Mattox,  1  Morr.  (Iowa)  367;  Hitch- 
cock v.  Fortier,  65  111.  239;  Corcoran 
V.  Brown,  3  Cranch  C  C.  R.  143; 
Bush  V.  Marshall,  6  How.  284;  Barr 
V.  Gratz,  4  Wheat.  213.  This  doctrine 
Avas  applied  to  the  sale  of  a  Patent 
Right.Faulks  v.Kemp.lT  Bhitcbf.  432. 
'  Dudley  v.  Caldwell,  19Coim.  218; 
Dugan  V.  Follett,  100  111.  581 ;  White 
V.  Butler,  13  111.  109;  Knight  v.Thair, 
123  Mass.  25;  Emory  v.  Fries,  104 
111.  416;  Loan  Co.  v.  King,  58  Iowa, 
598;  Holbrook  v.  Debo,  99  111.  372; 
Powers  V.  Patten,  71  ^fe.  583;  Scuddy 
V.  Shaffer,  10  La.  An.  133;  Clark  v. 
Baker,  14  Cal.  630;  Meyers  v.  Croft, 
13  WaW.  291 ;  Locke  v.  Riley,  30  N.J. 
E.  104;  Foulks  v.  Kamp,  17  Blatch. 
432;  Camp  v.  Krider,  62  Cal.  20; 
Chrjsty  v.  Dana,  42  Cal.  179;  Kirkal- 
die  V.  Lai-rabee,  31  Cal.  445.  Reeder 
V.  Craig,  3  McCord,  411;  Robertson  v. 
Shafton,  17  S.  C.  592;  Elder  v.  Deiby, 
98  111.  228;  Smith  v.  Williams,  44 
Mich.  240;  Bell  v.  Adams,  81  N.  C. 
118;  Bayley  v.  McCoy,  8  Oregon,  259; 
McCarty  v.  Ry.  Co.,  31  Minn.  278; 
Jarvis  v.  Aiken,  25  Vt.  635:  Bush  v. 
Marshall, 6  How.  284;  Witzel  v.  Pierce, 
22Ga.  112;  Dickerson  v.  Talbot,  14 
B.  Mon.  60;  Mayo  v.  Lewis,  4  Tex. 
38;  Zants  v.  Courcielle,  16  La.  An. 
96;  Lowry  v.  Williams,  13  Me.  281; 
Jaruegan  v.  Mears,  1  Humph.  473: 
DeWolf  V.  Hayden,  24  111.  525;  ,Cora- 
stock,  V.  Smith,  13  Pick.  176;  Allen 


V.  Parish,  3  Ohio,  107;  Washabaugh 
V.  Entriken,  34  Pa.  St.  74;  Bush  v. 
Cooper,  26  Miss.  599;  Jewell  v.  Por- 
ter, 31  N.  H.  34;  Kellogg  v.  Wood,  4 
Paige,  578;  Brundred  v.  Walker,  12 
N.  J.  E.  140;  Hassell  v.  Walker,  3 
Jones  L.  270;  Warburton  v.  Mattox,  1 
Mor.  (Iowa)  367;  House  v.  McCor- 
mick,  57  N.  Y.  310;  Tefft  v.  Munson, 
67  N.  Y.  97;  Churchill  v.  Terrel,  1 
Bush,  54;  Corcoran  v.  Brown,  3 
Cranch  C.  C.  143 ;  Lindsay  v.  Ramsey, 
22  Ga.  627;  Bush  v.  Marshall,  6  How. 
284;  Henderson  v.  Hackney,  22  Ga. 
383;  Goodsonv.  Beacham,  24Ga.l50; 
O'Bannon  v.  Paremour,  24  Ga.  489; 
Goochcnour  v.  Mowry,  33  111.  331; 
Wright  V.  Rutgers,  14  Mo.  585;  Nixon 
V.  Carco,  28  Miss.  414;  Clark  v. 
Slaughter,  34  Miss.  65;  Morrison  v. 
Underwood.  20  N.  H.  369;  Gough  v. 
Bell,  21  N.  J.  L.  156;  Ward  v.  Price, 
12  N.  J.  Eq.  543;  Moore  v.  Rake,  26 
N.  J.  L.  574;  Ross  v.  Adams,  28  N.  J. 
L.  160;  Berrick  V.  Bowman,  3  Jones 
Eq.  314;  Miller  V.  Bagwell,  3  McCord, 
429;  Mc Williams  v.  Nisely,  2  S.  &  R. 
507;  White  v.  Patten,  24  Pick.  324; 
Thompson V.  Thompson,  19  Me.  235; 
French  v.  Spencer,  21  How.  228; 
Wolf  V.  Goddard,  9  Watts,  547;  Bax- 
ter V.  Bradbury,  20  Me.  260;  Knowels 
V.  Kennedy,  82  Pa.  St.  444;  Locker 
V.  Riley,  30  N.  J.  E.  104;  Lewis  v. 
Baird,  3  McLean,  56;  Brad  well  v. 
Phillips,  30  Ohio  St.  253. 


780  The  Law  of  Estoppel. 

comtiion  recovery.  Such  was  their  solemnity  and  high  cliai'actcr, 
that  they  always  passed  an  actual  estate,  and  divested  the  feoffor 
or  conusor  not  only  of  what  he  then  had,  but  of  every  estate 
which  he  miglit  thereafter,  b}'  any  possibility  acquire.'  And 
this  principle  has  been  applied  in  modern  times.''  The  second 
class  of  assurances  which  passed  an  after  acquired  estate  by  way 
of  estoppel,  were  leases,  which,  it  will  be  remembered,  were  sus- 
ceptil)le  of  taking  effect  inftuturo',  and  the  estoppel  seems  to 
have  been  put  upon  the  ground  of  such  having  been  the  contract 
or  agreement  between  the  parties ;  the  same  contract  which 
implied  a  covenant  for  quiet  enjoyment  from  the  w  ox  A  demise  ow 
the  part  of  the  lessor,  and  a  covenant  for  payment  of  the  rent 
from  the  words  yi'eZi/m^  and  j!?ay«;?^  on  the  part  of  the  lessee.' 
These  modes  of  assurance  seem  to  have  been  the  only  ones  by 
which  an  after  acquired  title  was  actually  passed  by  direct  opera- 
tion of  law  under  the  doctrine  of  estoppel.  Thus,  a  grant  or  a 
lease  had  not  this  effect.  They  only  operated  upon  the  estate 
which  the  grantor  or  releasor  actually  had,  "  and  therefore  if  a 
man  grant  or  rent  a  charge  out  of  the  manor  of  Dale,  and  in 
truth  he  hath  nothing  in  that  manor,  and  after  he  purchases  the 
manor,  yet  he  shall  hold  it  discharged,"*  and  this  applied  equally 
to  a  release.  No  other  forms  of  conveyance,  in  the  absence  of 
covenants  of  warranty,  had  any  effect  in  transferring  the  title 
subsequently  acquired.  In  this  country  no  greater  effect  is  given 
to  a  grant  or  a  conveyance  by  bargain  and  sale,  or  lease  or  release, 
unaccompanied  with  covenants  of  warranty,  than  in  England 
under  the  statute  of  uses.  They  pass  only  the  estates  which  are 
vested  in  interest  at  the  time,  and  do  not  bind  or  transfer,  by  way 
of  estoppel,  future  or  contingent  estates.^ 

§  642.  Where  it  distinctly  appears,  in  a  conveyance,  either  by 

1  Shepard's    Touch,    204,   210;   Co.  Lower,  Pollexfen,  54;  Smith  v.  Low, 

Lit.  9  a,  49  a;  Plowden,  428.  1  Atk.  490;   Trevivan   v.  Luwrenco,  1 

-  Doc   V.  Ohver.  5   Mann.    &   Ryl.  Salk.  276;  Wells   v.  Austin,  7   Miuin. 

202;    S.    C,    10   Barn.  &   Cress.   182;  &  G.  701;   McKenzic   v.  Lexington,  4 

Uelps   V.    Hereford,  2   Barn.  &   Aid.  Dana,  129. 

242;  Doe  v.  Jones,  1  Crom.  ic  J.  528;  <  Perkins,  tit.  "Grant, "^65;  Wivcl's 

Vick  V.  Edwards,  3  P.  AVms.  371.  Case,  Hobart,  45;  Touch.  240;  Lam- 

=•  Bac.    Abr.    tit.    Leases,    290,   441 ;  pet's  Case,  10  Coke,  48. 

Rawlyn's  Case,  4  Coke,  53;  Weale  v.  '  Kennedy  v.  Skeer,  3  Watts,  597. 


Title  by  Estoppel.  781 

a  recital,  an  admission,  a  covenant,  or  otherwise,  that  tlie  parties 
actually  intend  to  convey  and  receive,  reciprocally,  a  certain 
estate,  they  are  estopped  from  denying  the  operation  of  the  deed, 
according  to  its  intent.' 

§  643.  There  was  then  an  ordinary  and  an  extraordinary 
effect  attached  to  an  estoppel.  The  one  was  personal  in  its  char- 
acter, like  the  rebutter  in  a  warranty,  and  estopped  the  grantor 
and  his  heirs  from  doing  or  alleging  anything  contrary  to  the 
tenor  and  effect  of  his  sealed  instrument.  The  other,  besides 
this  quality,  possessed  the  high  function  of  actually  transferring 
every  estate,  present  or  future,  vested  or  contingent,  to  the  feof- 
fee, oonusee,  or  lessee,  according  as  the  mode  of  assurance  em- 
ployed M^as  a  feoffment,  a  line,  or  a  lease ;  and  this  effect  was 
peculiar  to  them  alone,  there  being  no  authority  in  any  of  the 
English  books  to  show  that  it  was  produced  by  any  other  species 
of  conveyance.* 

§  644.  An  estoppel  can  hardly  be  regarded  as  a  distinct  mode 
of  acquiring  real  estate,  because  it  is  not  by  itself  a  transfer  or 
assurance,  but  depends  as  a  secondary  incident  iipon  other  direct 
alienations,  while  it  gives  to  them  a  peculiar  and  distinctive 
operation. 

§  645.  The  rule  that  there  can  be  no  estoppel  where  an  inter- 
est passes  is  peculiarly  applicable,  and  in  fact  derives  its  operation 
from  estoppel  by  deed.  Thus,  while  a  lessee  is  estopped  from 
showing  that  his  lessor  had  no  title  to  the  premises  demised,  yet 
he  may  show  that  he  was  entitled  to  a  particular  estate  which 
has  expired.     Whether  an  after  acquired  interest  will  pass  by  the 

'  Goodtitle  v.  Bailey,  Cowper,  559;  Caskey,  3  N.  J.  E.  446;  Fitzhugh  v. 

Doe  V.  Errington,  8  Scott,  210;  Bow-  Tyler,    9  B.    Mon.   559;    Williams   v. 

man  V.  Taylor,  2  Adolph  &  Ellis,  278;  Claiborne,    1    Sm.    &  Mar.    Cli.    365; 

Carver  v.  Astor,  4   Peters,    86;   Van  Rountree    v.    Jacob,   2    Taunt.     141; 

Rensselaer  v.   Kearney,  11  How.  297;  Harding  v.  Ambler,  3  M.  &   W.  279; 

Smith  V.  Pennell,  19  Conn.  Ill;  Mc-  Nosier  v.  Neilson,  18  Iowa,  212;  Jones 

Barney   v.    Cutler,    18   Barbour,  203;  v.    Williams,    2   Stark.  52;    Clark  v. 

Root   V.  Crook,  7   Pa.  St.  380;   Kins-  Baker,  14  Cal.  627;  Gibson  v.  Choteau, 

man  v.  Loomis,  11  Ohio,  478;  Williams  39   Mo.  536;   French  v.    Spencer,    20 

V.    Society,    1  Ohio  St.  478  ;  Den  v.  How.  240;   Gould  v.  West,   32  Tex. 

Brewer,    IN.  J.  L.  172;   Decker   v.  338;  Bayley  v.  McCoy,  8  Oreg.  259. 

'  Doe  V.  Oliver,  10  Barn.  &  Cr.  181. 


782  The  Law  ob^  Estoppel. 

estoppel  of  a  prior  conveyance,  depends  upon  tlie  meaning  of  the 
deed  as  manifested  by  its  language;  and  when  the  intention  is 
to  convey  the  land  and  not  merely  the  title  which  the  grantor 
has  at  the  time,  an  estoppel  arises  and  renders  it  effectual  ; 
whether  the  object  in  view  appears  from  the  covenants  or  recitals 
in  the  deed  will  make  no  difference  i{  it  is  disclosed  with  suffi- 
cient clearness,  and  an  allegation  that  the  grantor  has  or  agrees 
to  convey  a  good  and  sufficient  title  will  be  equally  effectual  with 
an  agreement  to  warrant  or  protect  the  right  or  enjoyment  of 
the  grantee. 

§  646.  The  effect  of  a  deed  depends  on  its  meaning,  as  col- 
lected from  its  language,  and  whether  its  operation  should  be 
limited  to  the  interest  which  the  grantor  has  at  the  time,  or 
extends  to  that  which  he  may  subsequently  acquire,  will  depend 
on  all  the  recitals  and  stipulations  which  it  contains,  rather  than 
on  the  effect  of  any  particular  clause  in  the  words  of  grant  by 
which  the  title  is  passed  or  the  covenants  by  which  it  is  assured 
and  fortified.  Therefore,  any  covenant,  which  like  that  of  further 
assurance  or  quiet  enjoyment,  indicates  that  the  intention  of  the 
grantor  was  to  convey  the  land  absolutely,  and  not  merely  such 
title  as  the  grantor  had,  is  as  effectual  as  an  absolute  warranty  in 
binding  an  after  acquired  interest  in  equity  (in  Enghand)  and  in 
(this  country)  at  law,  while  the  limitation  of  a  covenant  of  war- 
ranty or  for  title  may  not  only  restrict  its  own  operation,  but 
afford  ground  for  an  inference  that  the  operation  of  the  deed  is 
equall}'  limited  ;  yet  the  purpose  of  the  parties  may  have  been 
that  the  grant  should  extend  to  future  as  well  as  present  estates 
or  interest,  without  luakingr  the  grantor  answerable  for  the  ijood- 

7  0  0  c> 

ness  of  the  title  convej'ed  at  the  time.  When  such  intention  is 
apparent  it  should  be  carried  into  effect  without  regard  to  the 
manner  chosen  for  its  expression. 

§  647.  Whenever  the  terms  of  the  deed  or  the  covenants 
which  it  contains  clearl}-  show  that  it  was  meant  to  convey  an 
absolute  and  indefeasiljle  title,  and  not  merely  that  which  the 
grantor  had  at  the  time,  it  will  bind  or  pass  every  estate  or  inter- 
est which  may  vest  in  him  subsequently  to  its  execution,  whether 
the  warranty  it  contains  be  general  or  special,  and   although  it 


Title  by  Estoppel.  783 

coDtains  no  warranty  whatever.'  If  the  seisin  or  possession  of  a 
particular  estate  is  affirmed  in  the' deed  either  in  express  terms 
or  by  necessary  iniplication,  the  grantor  and  all  persons  in  privaty 
with  him  are  estopped  from  ever  afterwards  denying  that  he 
was  so  seized  and  possessed  at  the  time  he  made  the  conveyance. 
The  estoppel  works  upon  the  estate  and  binds  an  after  acquired 
title  as  between  parties  and  privies.  By  statute,  in  many  states, 
conveyances  under  the  statute  of  uses,  where  a  fee  simple  abso- 
lute is  conveyed  in  land,  of  which  the  grantor  has  no  legal  estate 
at  the  time  of  making  such  conveyance,  and  the  grantor  subse- 
quently acquires  title  to  the  same,  the  estate  so  acquired  passes 
at  once  to  the  original  grantee,  creating  in  him  a  valid  title  and 
estate.  And  this  applies  to  cases  of  mortgage  estopping  the 
mortgagor  and  his  privies  from  setting  up  against  his  own  mort- 
gagee an  after  acquired  title  to  the  estate/  and  also  applies  where 
the  party  is  obtaining  title  under  the  homestead  laws  of  the 
United  States. 

§  648.  Some  forms  of  conveyance  operate  as  an  estoppel 
against  those  who  make  them,  from  their  very  nature,  as  in  the 
case  of  a  feoffment.  Others,  as  a  simple  release,  liave  no  effect 
beyond  passing  or  extinguishing  whatever  interest  the  releasor 
lias  at  the  time.  Others  operate  by  way  of.  estoppel,  by  reason 
of  the  covenants  as  to  title  they  contain.  A  partj'  to  a  deed  is 
estopped  to  deny  anything  stated  in  the  deed  which  has  operated 
upon  the  other  party  as  the  inducement  to  accept  and  act  under 
such  deed,  and  this  extends  to  facts  stated  in  other  deeds  referred 
to  directly,  or  by  way  of  recital.  Thus,  a  feoffment,  by  a  person 
who  is  not  the  owner  of  lands,  passes  of  necessity  a  fee  by  wrong 

'Fairbanks  v.  Williamson.  7  Mc.  Christy  v.  Dana,  42  Cal,, 179;  Kirkaldie 
96;  White  v.  Erskine,  10  Me.  360;  v.  Larrabee.  31  Cal.  445;  Elder  v. 
Trull  V.  Eastman,  3 Met.  121;  Bean  V.  Derby,  98  111.228;  Boone  v.  Aim- 
Welsh,  17  Ala.  722;  Wightraan  v.  strong,  87  Ind.  168:  Tliompson  v. 
Reynnlds,  24  Miss.  689.  Justice,   88   IST.  C.    269;    Goodwin   v. 

^  Clark  V.  Baker,  14  Cal.  612;  Van  Keney,  49  Conn.  282;  Jones  v.  Reese, 

liensselaer  v.  Kearney,  11  How.  322;  65  Ala.  134;  Blakeslee  v.  Ins.  Co.,  57 

Bogy  V.  Shoab,  13  Mo.  379;  Cooke  V.  Ala.    205;   Wright    v.    De   Groff,    14 

Brogan,  5  Ark.  699;  Frink  v.  Darst.  Mich.     164;     Kelly     v.     Jenness,     50 

14   111.    308;   Morrison   v.  Wilson,  30  Me.  455;    Somes   v.  Skinner,   3   Pick. 

Cal.  847;  Locker  v.  Kiley,  30  N.  J.  E.  52;   Russ  v.  Alpaugh,  118   Mass.  369: 

104;    Camp    v.    G rider,    62    Cal.    20;  Knight  v.  Thayer,  125  Mass.  25. 


784  The  Law  of  Estoppel. 

or  disseisin.  It  binds  the  feofifer  for  life,  by  estoppel,  so  that  he 
cannot  claim  the  right,  should  it  descend  to  him,  against  his  own 
feoffee.  lie  cannot  purchase  the  fee,  since  his  feoffment  is  a 
disseisin.  But  it  is  an  estoppel  only  to  him  personally,  and  will 
not  l)ind  his  heirs.  Lord  Coke  says,  there  is  a  diversity  between 
a  feoffment  and  a  warranty.  A  feoffnient  is  good  against  the 
feoffor,  but  not  against  his  heirs ;  a  warranty  is  good  against  one 
and  his  heirs.  As  far  as  the  heir  claims  as  heir,  he  may  be  barred 
b}'  force  of  the  warranty  as  a  rebutter,  though  not  bound  by  the 
feoffment.  Thus,  if  an  heir  apparent  makes  a  feoffment  in  the 
life  of  his  ancestor,  of  laud  which  afterwards  descends  to  him, 
he  is  estopped  to  set  up  a  title  against  his  feoffee. 

§  649.  A  deed  of  simple  release  passes  only  such  interest  or 
estate  as  the  releasor  has  at  ilie  time,  and  never  operates  by  way 
of  estoppel  to  convey  any  interest  which  he  may  afterwards 
acquire.  In  order  to  prevent  maintenance  and  the  multiplying 
of  contentions,  as  stated  by  Lord  Coke,  it  was  an  established 
maxim  of  the  common  law,  that  no ptMsibllit//,  right,  title,  or  any 
other  thing  that  was  not  in  possession  or  vested  in  I'ight,  could  be 
granted  or  assigned  to  strangers.'  Thus  a  simple  release  by  an 
heir  apparent  of  liis  chance  of  succession,  though  made  by  deed, 
will  not  bar  his  title  when  it  accrues.'  So  one  v;ho  has  a  con- 
tingent remainder,  an  interest  by  way  of  executory  devise,  or  a 
possibility  like  that  of  an  heir  apparent,  even  though  he  may  not 
at  common  law  make  a  grant  of  such  an  interest  by  deed  so  as  to 
pass  the  same  distinctly,  may  convey  the  estate  out  of  which  his 
interest  is  to  arise,  in  such  a  manner  that  this  will  operate  as  an 
estoppel,  and  prevent  his  claiming  such  interest  when  it  arises. 
Thus  equity  holds  a  contract  of  an  expectant  heir,  who  becomes 
heir  def acta,  binding  on  him,  though  equity  does  not  extend  this 
to  his  heir.'  In  order  to  woi"k  an  estoppel  in  such  case©,  there 
must  be  either  a  grant  or  release,  with  a  general  covenant  of  war- 
ranty, or  an  express  affirmation  in  the  grantor's  deed  of  there 

>  Co.  Lit.  265  a,  note,  212.  438;  Pureff)y  v.  Rogers,  3  Saund.  388; 

«  1  Prest.  Abst.  302;  2  Prest.  Conv.  Fitcli  v.  Fitch,  8  Piclc.  483;  Stover  v. 

268.  Eycleslieiraer,   46  Barb.  84;  Wealc  v, 

3  2  Prest.  Abst.  210;  2  Prest.  Conv.  Lower,    Pollexf.    54  ;     Ilarailtou     v. 

268,  271 ;  Hayne  v.  Maltby,  3  T.  R.  Clement,  17  Ala.  201. 


Title  by  Estoppel.  7So 

being  an  estate  such  as  he  assumes  to  convey.*  The  deed  of  an 
heir  apparent,  conveying  the  estate  out  of  which  his  interest  is 
to  arise,  will  operate  by  way  of  estoppel  against  him,  but  not  as 
against  his  heirs,  against  whom  there  is  no  covenant  of  warranty.^ 
The  estoppel  of  a  conveyance  is  founded  on  the  intention  which 
it  manifests  to  convey,  and  arises  whenever  the  instrument,  taken 
as  a  whole,'  shows  that  the  agreement  was  that  the  grantee  should 
have  a  good  title  and  not  merely  that  which  the  grantor  had 
when  the  deed  was  executed.  A  covenant  that  any  title  that 
might  afterwards  be  acquired  by  the  grantor,  should  inure  to  the 
benefit  of  the  covenantee,  was  held  to  bind  and  pass  a  subsequent 
estate  immediately  upon  its  acquisition  by  the  grantor,  not  only 
as  between  the  parties,  but  as  against  all  the  world. 

§  650.  Where  one  makes  a  deed  of  land  covenanting  that  he 
is  the  owner,  and  subsequently  acquires  an  outstanding  and 
adverse  title  his  new  acquisition  inures  to  the  grantee  on  the 
principle  of  estoppel,  and  where  a  person  buys  land  and  pays  for 
it,  and  there  is  a  deed  made  subsequently  to  the  grantee  in  con- 
sequence of  his  purchase,  it  does  not  confer  a  new  title  on  him 
but  confirnjs  the  right  which  he  had  before  the  deed  was  made,* 
so  one  who  conveys  without  title  is  estopped  from  claiming  it,  if 
he  afterwards  acquire  it.  So  where  one  received  the  legal  title 
of  land  for  the  benefit  of  certain  creditors  of  the  owner  thereof, 
he  cannot  afterwards  set  up  any  title  which  would  affect  the 
trust. ^  A  patent  is  necessary  in  order  to  pass  a  perfect  and  con- 
summate legal  title  to  public  lands.  But  when  granttid  it  inures 
to  any  one  to  whom  the  patentee  is  bound  to  convej'^  the  land  or 
for  whose  use  he  ought  to  hold  it.''  A  man  gave  a  deed  of  bar- 
gain and  sale  without  covenants,  but  reciting  that  at  its  date  he 

'  White  V.    Patten,   24  Pick.   324;  Shotwell  v.    Harrison.  22  Midi.  410; 

Wight  V.  Shaw,  5  Cush.  56;  Wiesner  C4uy  v.  Heermauce,  5  Cal.  73;  Wright 

V.  Zaun,  39  ^\is.  188.  v.  Rutgers,  14  Mo.  585;  Wailerston  v. 

^  Bohon  V.  Bohon,  78  Ky.  408.  Bennett,    18   La.    An.    250;   Kline   v. 

3  Phillips  V.  Kellogg,  15  111.  131.  Argenbright,  26  Iowa,  493;  Witzel  v. 

*  Irvine  v.  Irvine,   9  Wallace,  617;  Pierce,  22  Ga.  112;  Patrick  v.  Chen 

Burtuers  v.  Kean,  24  Gratt.  48;  Drake  ault,  6  B.  Mon.  315;  Burdick  v.  Went 

V.  Root,  2  Col.  T.  685.  worth,  42  Iowa,  440;  Green  v.  Liter. 

"  Paul  V.  Oliphant,  14  Pa.  St.  842.  8  Cranch,  229;   Lindsay  v.   Miller,  6 

«  Johnson  v.  Collins,   12   Ala.  322;  Peters,  677. 
Vol.  L— 50 


780  The  Latv  of  Estoppel. 

had  entered  the  huid  as  described  in  a  certain  certificate  of  pur- 
yhase.  He  afterwards  obtained  a  patent.  Held:  that  the  recitals 
ju  tlie  deed  and  patent  were  evidence  as  against  all  the  world 
that  conveyance  had  been  made  before  the  patent  issued.'  Any 
title  subsequently  acquired  by  the  grantor  who  conveys  by  war- 
ranty, will  inure  to  the  benefit  of  the  grantee.  But  grants  made 
by  the  grantor  on-  conditions  or  limitations,  or  cstop}>els  subse- 
quently attempted  to  be  annexed  to  the  estate,  will  not  affect  his 
grantee.^ 

§  651.  If  the  vendor  in  a  conveyance  of  land  has  no  title  at 
the  date  of^  the  deed,  but  acquires  a  good  title  afterwards,  the 
title  thus  acquired  inures  to  the  benefit  of  the  first  vendee  against 
a  subsequent  vendee,  who  claims  by  a  deed  made  after  the  title 
accrued  to  the  vendor,  and  the  vendor  and  all  who  claim  under 
him  are  estopped  by  his  first  deed  to  deny  that  tlie  vendor  had 
title  at  the  date  of  the  deed,'  Thus,  where  a  patent  issued  to  the 
original  beneficiary  under  a  bounty  or  homestead  act,  who  had 
previously  sold  and  assigned  his  right,  it  inures  to  the  benefit  of 
the  purchaser,  and  relates  back  to  the  date  of  the  entry.  The 
heir  of  the  grantor,  the  beneficiary,  is  estopped  from  setting  up  a 
legal  title  under  the  patent.  As  between  the  owners  of  a  prior 
equitable  title  derived  from  the  governn)ent  and  another  who 
has  acquired  from  the  same  source  a  subsequent  legal  title  for 
value  and  without  notice,  the  latter  will  be  preferred."  A  pur- 
chaser from  a  patentee  for  a  valuable  consideration^  without 
actual  notice  of  a  prior  entry  of  the  same  land,  will  be  protected  in 
equity,  though  the  patentee's  survey  was  not  founded  on  an  entry.* 

1  Fisher  v.  Hallock,  50  Mich.  463.  J.  E.  495;  Jackson  v.  Hnbbell,  1  Cow. 

s  Pope  V.  Henry,  24  Vt.  560.  613;  Jackson  v.  Winslow,  9  Cow.  18; 

3  Corcoran  v.  Brown,  3  Cranch  C.  Jackson  v.  Bradford,  4   Wend.    6"22; 

C.  R.  143;  Bell  V.  Twilight,  26  N.  H.  Jackson  v.  Waldron,  13   Wend.   178; 

401;  Bennett  v.   Waller,   23  111.  182;  Kinsman   v.    Loomi.s,   11    Obio,    475; 

Bhinchard   v.    Brooks,    12   Pick.    47;  Mitchell  v.  AVoodson,    37   Miss.  578; 

Bond   V.    Swearingeu,   1     Ohio,    395;  Pclletrau  v.   Jackson,  11   Wend.  119; 

Cadiz  V.  Majors,  33  Cal.   288;  Dart  v.  Quivey  v.  Baker,  87  Cal.  288;  Taft  v. 

Dart,  7  Conn.  256;  Doswell  v.  Buch-  Stevens,  3  Gray,  504. 

anan,  3  Leigh,  865;  Edwards  v.  Yar-  <  Lindley  v.  Haws,  2  Blackf.  554; 

ick,  5  Denio,  665;  Varick  v.  Edwards,  Brush  v.  Ware,  15  Pet.  109;  Brown  v. 

11    Paige,    290;    Fox   v.   Widgery,    4  Chiles,  10  Pet.  177. 

Me.  218;  Howe  v.  Harrington.  18  N.  ^  Dei.xel  v.  King,  7  Leigh,  393, 


Title  by  Estoppel.  787 

If  a  person  sells  land,  or  an  interest  of  land,  and  takes  pay  for  it, 
and  covenants  for  the  title,  while  he  has  no  title,  and  none 
actually  passes,  his  covenant  runs  with  the  land,  and  estops  him 
whenever  he  acquires  title.'  Thus  where  a  man  demised  land, 
in  which  he  had  nothing  by  indenture,  the  lease  was  destitute  of 
effect  at  the  time,  as  it  regarded  third  persons,  and  only  valid 
between  the  parties  because  they  were  estopped  from  showing 
the  truth  ;  but  Avhen  a  term  of  twenty-one  years  subsequently 
vested  in  the  lessor,  the  estoppel  bound  the  interest  thus  acquired 
and  rendered  the  title  of  the  lessee  good  against  all  the  world.' 

§  652.  In  addition  to  the  more  usual  effect  of  an  estoppel  in 
precluding  the  right  to  show  that  the  deed  did  not  pass  the  estate, 
there  arose  another  by  which  the  estate  was  passed  in  conformity 
to  the  deed.  In  Doe  y.  Oliver,^  where  it  had  been  contended 
that  as  the  conusor  had  no  vested  estate  when  the  fine  was  levied, 
it  only  concluded  the  parties  and  privies,  and  did  not  bind  the 
defendant  who  claimed  as  a  stranger,  the  court  held  that  the 
estate  which  subsequently  accrued  fed  the  estoppel  and  passed  by 
the  operation  of  the  fine.  Nothing  which  is  not  possessed  can 
be  granted,  but  may  yield  to  the  force  of  an  estoppel,  a  deed 
which  purports  to  convey  land  absolutely  and  without  qualifica- 
tion, will  not  only  estop  the  grantor  from  recovering  in  opposition 
to  the  grant,  but  transfers  any  estate  or  interest  which  he  may 
subsequently  acquire,  whether  it  does  or  does  not  contain  a  cov- 
enant of  warranty,  or  for  quiet  enjoyment,  or  a  recital  that  he 
has  good  title  to  the  premises  conveyed.* 

§  653.  The  old  rule  of  law  was  :  where  one,  by  a  deed  of  bar- 
gain and  sale,  or  lease  and  release,  conveyed,  to  which  he  had 
no  title,  he  was  estopped  by  his  deed  from  claiming  an  after 
acquired  title  in  it.^     But  this  rule  has  been  repeatedly  set  aside, 

'  Frencli  v.    Spencer,    21   Howard,  383;  Browu  v.  McCormick,  6  Watts, 

228;  Knight  v.   Leaiy,   54   Wis.  459;  60;  McCall  v.  Coover,  4  W.  &  S.  151; 

Fletcher  "v.    Coleman,  2   Head,   384;  Root   v.  Cook,  7  Pa.  St.  380;  Nixoa 

Allen  V.  Parish.  3  Ohio,  107.  v.  Carco,  28  Miss.  414;  Maj^s  v.  Lewis, 

'  Rav;lin's  Case,  4  Coke,  52.  4  Tex.  38;  Reader  v.  Craig,  3McCord, 

3  3  M.  &  R.  202.  411. 

4  Henderson   v.   Hackney,    23  Ga.         *  Jackson  v.  Bull,  1  John.  Cases, 

81. 


788 


The  Law  of  Estoppel. 


and  the  law  at  the  present  time  is,  that  where  one  conveys  land 
to  wiiich  he  has  no  title  by  deed  of  bargain  and  sale,  icithout  a 
covenant  of  ivarranty,  a  subscqncntly  acquired  title  will  not  inure 
to  the  benetit  of  the  bargainee,  even  as  against  the  bargainor  and 
his  heirs.' 

^  C54.  But,  while  a  conversance  b}'  deed  works  no  estoppel 
that  can  bind  future  estates  or  even  conclude  the  grantor  or  those 
claiming  under  him  from  recovering  in  opposition  to  the  grant,  a 
diflferent  result  follows  and  is  caused  by  the  presence  in  the  deed 
of  a  covenant  of  warranty.  The  estoppel  of  a  conveyance 
depends  wholly  on  the  presence  or  absence  of  the  warranty.  A 
warranty  creates  an  estoppel  which  not  only  binds  the  grantor 
but  takes  effect  on  every  subsequent  interest  which  he  acquires, 
and  transfers  it  immediately  to  the  grantee.'     But  when  the  cov- 


'  SpaiTOWv.  Kingman,  1  N.  Y.  247; 
Comstock  V.  Smilli,  13  Pick.  IIG; 
Ham  V.  Ham,  14  Elaine,  o.jl :  Frinli 
V.  Darst,  14111.  304;  Tillotsou  v.  Ken- 
nedy, 5  Ala.  413. 

*  Knowles  v.  Kennedy,  82  Pa.  St. 
444;  Broadwell  v.  Pliillips,  CO  Ohio 
St.  20.5;  Douglass  v.  ScoLt,  5  Oliio, 
104;  Baker  v.  Morris,  l.j  Oliio,  108; 
Doswell  V.  Buciiauan,  7  Lfigli,  370; 
College  V.  Cheney,  1  Vt.  586;  Blake 
V.  Tucker,  12  Vt.  39;  Boston  v.  Spar- 
bawk,  o^Nlet.  469;  Mas.^ie  v.  Sebastian, 
4  Bibb,  436 ;  Logan  v.  Steele,  4  Mon. 
463;  Logan  v.  Mo^re,  7  Dana,  76; 
Pliilly  V.  Sanders,  11  Ohio  S.  490; 
Diekerson  v.  Talbot,  14  B.  Mon.  60; 
Rigg  V.  Cook,  9  111.  348;  Robertson  v. 
Gaines,  2  Humph.  383;  Kennedy  v. 
IMcCartner,  6  Ind.  159;  Jackson  v. 
Hubbell,  1  Cow.  61^;  Jackson  v. 
"NVinslow,  9  Cow.  18;  Jackson  v.  Brad- 
ford, 4  Wend.  522;  Jackson  v.  Wal- 
dron,  13  Wend.  178;  Pelletrau  v.  .Jack- 
son, 13  Wend.  719;  Kellogg  v.  Wood, 
4  Paige.  478;  Bank  v.  ^Merserau,  3 
Barb.  Ch.  528;  Funk  v.  Newcomer,  10 
Md.  301;  Packard  v.  Ins.  Co.,  2  Gray, 
334;  Skinner  v.  Staiuer,  24  Pa.  St.  123; 


Washabaugh  v.  Entrikeu,  34  Pa.  St. 
74;  Bush  V.  Marshall,  6  How.  291; 
Iloyt  V.  Dimon,  5  Conn.  479;  Dart  v. 
Dart,  7  Conn.  260;  Fox  v.  Widgerey, 
4  Me.  214;  Laury  v.  Williams,  13  Me. 
282;  Ham  v.  Ham,  14  Me.  354;  Pike 
V.  Galvin,  21  Me.  185;  Kemble  v. 
Blaisdell,  5  N.  H.  535;  Farrington  v. 
Underwood,  20  N.  H.  369;  Kimball  v. 
Schoff,  40  N.  H.  196;  Roberts  v.  Wil- 
son, 38  N.  H.  48;  Hayues  v.  Taylor, 
41  N.  H.  521  ;  Ross  v.  Adams,  28 
N.  J.  L.  160;  Hassell  v.  Walker,  5 
Jones,  314;  Wade  v.  Lindsay.  5  Pick. 
413  ;  Gongb  v.  Bell,  21  N.  J.  L. 
165  ;  3Ioorc  v.  Rake,  26  N.  J.  L. 
574  ;  Brundrcd  v.  Walker,  12  N. 
J.  E.  140;  Jackson  v.  Stevens,  13 
Johns.  316;  Browu  v.  McCoruiick,  6 
Watts,  60;  Jackson  v.  Matsdorf,  11 
Johns.  91 ;  Somes  v.  Skinner,  3  Pick. 
32;  Terrett  v.  Taylor,  9  Cranch,  43; 
Wark  V.  Willard,  13  N.  H.  389;  Com- 
stock V.  Smith,  13  Pick.  116;  Trull  v. 
Eastman,  3  Met.  121;  Whiter.  Patten, 
24  Pick.  324;  Allen  v.  Parish.  3  Ohio. 
107;  Bondv.  Swearinger,  1  Ohio,  190; 
Jackson  v.  Hoffman,  9  Cow.  271; 
Jackson   v.    Wright,   14  Johns.   193; 


TiTjLE  BY  Estoppel.  789 

enant  of  warranty  is  extinguished,  the  after  acquired  title  does 
not  pass  by  estoppel.  As  for  example,  B.  conveyed  land  to  C. 
with  full  covenants ;  C.  ceded  it  to  the  United  States  under  a 
treaty.  The  administrator  of  C.'s  estate  afterwards  conve^^ed  it 
to  G.  The  United  States  by  patent  conveyed  it  to  B.  again.  Held, 
that  B.'s  covenants  to  C.  were  extingui^-hed,  and  could  not  be  set 
up  as  an  estoppel  against  B.  by  G.,  nor  did  B.'s  subsequently 
acquired  title  inure  to  G.' 

§  655.  It  has  been  decided  in  Maine  that  a  covenant  of  non- 
claim,  viz.:  a  covenant  that  neither  the  grantor  nor  any  other 
person  shall  or  will  have,  claim  or  demand  any  right  or  title  to 
the  premises,  is  not  such  a  covenant  as  will  support  an  action 
against  the  party  making  it,  and  hence,  that  it  will  create  no 
estoppel.''  Such  a  construction  given  to  this  covenant  has  not, 
however,  been  elsewhere  adopted,  it  being  generally  considered  as 
synonymous  with  a  covenant  of  warranty.^  The  general  rule  may 
be  thus  stated  :  Where  a  party  executes  a  mere  quit-claim  deed  of 
such  interest  as  he  then  has  in  a  tract  of  land,  without  any  cove- 
nants whatever,  a  title  subsequently  acquiied  by  him  will  not 
inure  to  his  grantee  or  assigns.  But  where  he  makes  a  quit-claim 
deed  for  land,  and  covenants  that  neither  he.  his  heirs,  nor  any 
other  person  for  them,  in  their  name  and  behalf,  shall  thereaft-r 
claim  or  demand  any  right  or  title  to  the  premises,  or  any  part 
thereof,  but  they  and  every  one  of  them  shall  thereby  be  excluded 
and  forever  debarred,  a  subsequently  ;icqui;-ed  tite  by  the  grantor 
will  pass  to  his  grantee  or  assigns  by  way  of  estoppel.  As  a  gen- 
eral rule  there  is  no  distinction  between  a  covenant  of  non-claim 
and  the  ordinary  covenant  of   warran^y,  but  both  are  in  general 

Baxter    v.    Bradbury.    20    Mc.    260-  v.  Underwood,  20  N.   H.   369;  Wies- 

Blanehaid  v.  Ellis,  1  Gray,  198;  Clark  ner  v.  Zaun,  39  Wis.  188;  Taggart  v. 

V.  Baker,  14  Cal.  630;  Van  Renss-laer  Risley,    3  Oreg.    306;    House   v.    Mc- 

V,  •Kearney,  11    How.  322;   Perry  v.  Cormitk,    o7   N.    Y.    310;   Wilson  v. 

Kline,    12    Cush.    118;    Goodson    v.  King,   23   N.   J.  Eq.  1.50;    Gough  v. 

Beacbam,  24   Ga.    150;   O'Banuon  v.  Bell,  21  K  J.   Eq.    164;   Churchill   v. 

Paramour,  24  Ga.  489;  Chamberlain  v.  Terrell,  1  Bush,  54. 

Meeder,  16  N.  H.  381;    King  v.  Gil  '  Goodrl  v.  Bennett,  22  Wis.  565. 

son,  32  111.  353;  Burton  v.  Reeds,  20  ^  pike  v.  Galvin,  29  Me.  183;  Loomis 

Ind.  93;  Mays  v.    Lewis,  4  Tex.   38;  v.  Pingree,  43  Me.  314. 

Jewell  V.  Foster,  81  N.  H.  34;  Fields  =•  Trull  v.  Eastman,  3  Met.  121;  Mil- 

V.  Willingham,  49  Ga.  344;  Morrison  lir  v.  Ewing,  6  Cush.  34. 


790  The  Law  of  Estoppel. 

held  to  liave  the  same  operation   by  way  of  estoppel,  and  both , 
will  run  with  the  land.'     And  where   a  part}',  having  the  equi- 
table title  to  lands,  and  being  entirled  to  the  legal  title,  conveys 
the  same  by  quit-claim  deed,  and  subsequently  acquires  the  legal 
title,  it   will   inure  to  his  grantee,^  and   in   accordance  with  this 
princii)lc  it  was  held.     Where  a  purchaser  of  knd  at  a  sheriff's 
sale  under  execution,  conveys  the  land,  even  by  quit-claim  deed, 
after  he  is  entitled  to  a  deed  from  the  sheriff,  but  before  its  exe- 
.  cution,   a   deed  executed    by  the   sheriff   subsequently  to  such 
conveyance  by  the  purchaser  will  have  relation  back  to  and  take 
effeet  from  the  time  the  purchaser  was  entitled  to  receive  it,  there 
being   no   rights   of    third    persons   to   be   injuriously    affected 
thereby  ;  so  the  grantee  under  the  deed  from  the  execution  pur- 
chaser would  take  the  same  title  he  would  if  the  sheriff's  deed 
had  been  made  prior  to  such  conveyance.'     But  in  a  late  case  in 
Maine*  it  was  said,  that  under  a  deed  by  husband  and  wife  of  the 
wife's  land,  Avith  covenants  of  warranty  by  both,  a  title  after- 
wards acquired  by  the  husband  inures  to  the  grantee  as  against 
the  grantor  and  all  persons  who  hold  under  the  grantor's  deed 
^iven  after  the  subsequent  title  is  acquired.     Such  after  acquired 
title  descends  to  any  person  who  holds  under  the  first  grantee, 
however  remote  from  him  in  the  line  of  title ;  and  the  succession 
is  not  broken  by  some  of  the  intervening  deeds  conveying  only 
"the  right,  title  and  inti-rest  in  the  land"  M'hich  the  grantor^s 
had  ;  such  mode  of  conveyance  being  equivalent  to  a  release  deed 
at  least.      In  the  Supreme  Court  of  the  United  States  it  was 
said,  where  a  party  having  an  inchoate  title  to  land  gave  a  power 
to  sell  and  convey  it,  declaring,  however,  in  the  power,  that  the 
attorne}''  was  authorized  to  convey  "  such  interest  as  I  have  "  and 
no  other,  and  that  he  would  not   hold   himself  liable   for  acts  of 
his  attorney,  "beyond  quit-claiming  whatever  title  I  have."  The 
party  afterwards  acquired  complete  title,  and  the  attorney  con- 
veyed by  quit-claim   for  full  consideration,  which  consideration 
passed  to  the  principal.     The  grantor  could   not,  six  years  after- 
wards, disavow  the  act  of  his  attorney  and  convey  the  land  to 
another  person.' 

>  Holbrook  v.  Debo,  99  111.  372.  ^  r  r  Co.  v.  Sawyer,  92  III.  377. 

*  Welsh  V.  Dutton,  79  111.  4C5.  *  Powers  v.  Patlen,  71  ]Me.  583. 

B  Smith  V.  Sheely,  12  Wall.  538. 


TrxLE  BY  Estoppel.  791 

§  656.  Any  after  acquired  estate  will  innre  by  virtue  of  the 
warranty,  to  the  party  claiming  under  such  conveyance,  with  the 
same  effect  as  if  it  had  been  originally  passed  by  it.  Thus,  where 
one  liaving  granted  land  to  his  father,  afterwards  mortgaged  the 
same  land  with  a  covenant  of  warranty,  it  was  held  that  upon  the 
death  of  the  father,  and  the  descent  of  the  moiety  of  the  estate 
upon  himself  as  one  of  his  fathers  heirs,  the  mortgagee  took 
that  moiety  by  estoppel.'  So  where  administrators  conveyed 
land  of  their  intestates  by  a  deed  in  the  common  form  of  an 
administrators  deed,  except  that  it  contained  a  general  covenant 
of  warranty.  One  of  the  administrators  subsequently  acquired 
in  his  own  right  a  prior  outstanding  easement  in  the  land.  The 
administrators  had  no  power  to  make  such  covenant  binding 
upon  the  estates  that  they  represented,  but  that  they  were  per- 
sonally bound  thereby,  and  that  the  interest,  when  it  accrued, 
fed  the  estoppel.'  So  where  an  heir  gave  a  release  of  his 
expectant  es  ate,  with  a  covenant  that  neither  he  nor  those 
claiming  under  him  should  ever  claim  any  right  to  the  same,  it 
was  held  that  when  the  estate  devolved  upon  him,  it  immediately 
inured  by  estoppel  to  the  grantee.^  So  where  a  woman  on  the 
eve  of  marriage,  made  a  conveyance  to  a  trustee  of  pioperty  to 
which  she  then  had  no  right,  but  to  which  she  subsequently 
acquired  a  right,  it  was  held  the  property  passed  to  the  trustee  by 
estoppel.* 

§  657.  It  is  a  well  settled  principle  of  the  common  law,  that 
if  one  conveys  lands  or  other  real  estate,  with  a  general  covenant 
of  warranty  against  all  lawful  claim  and  demands,  he  cannot  be 
allowed  to   set  up  against   his  grantee  or  those   claiming  under 

» Somes    V.    Skinner,    3   Pk-k.   fi2;  Bradbury.    20  Me.    260;  Williams  v. 

Wiesn  r  v.  Zaun,  3iJ  Wis.  188.  Tharlnw,  31  Me.  295 ;  Blake  v.  Tucker, 

-  Stowe  V.  Wyse,  7  Conn.  '220;  Col-  12  Vt.    39;    Funk  v.    Newcomer,  10 

lege  V.   Cheney,  1   Vt.  336;  Blake  v.  ]Mrl.  301;  Barton  v.    Morris,  15  Ohio, 

Tucker  12  Vt.  39;  Green  v.  Clark,  13  4:)8;    Bean    v.    Welsh,    17   Ala.    775; 

Vt.    158;  Jarvis  v.  Aiken,  25  Vt.  635;  O'Bannan  v.   Paramour,  24  Ga.  489; 

Cross V.  Martin,  46  Vt.   14;  Proutyv.  ]\[ason   v.    Muncaster,  9   Wheat.  445; 

Mather,  49  Vt.  415.  Shaw  v.  Galbraith,  7  Pa.  St.  Ill;  Red- 

=  Trull  V.  Eastman,  3  Met.  121:  Car-  man  v.  Bellamy,  4  Cal.  247;  Bell  v. 

brey  v.    Willis.  7  Allen,  364;  Gouch-  Adams  81  N.  C.  118. 

ener  v.  Mowry.  83  111.  331;  Sparrow  v.  '  Benick  v.  Bowman,  3  Jones  Eq. 

Kingman,   1  N.  Y.   247;    Baxter  v.  314. 


792  The  Law  of  EsTorPEL. 

him,  any  title  subsequent!}'  acquired,  either  by  purchase  or  otlier- 
wise.  Such  new  title  will  inure,  by  way  of  estoppel,  to  the  use 
and  benefit  of  his  grantee,  his  heirs  and  assigns.  This  principle 
is  founded  in  equity  and  justice,  as  well  as  the  policy  of  the  law. 
It  is  just  that  a  party  should  not  be  permitted  to  hold  or  i-ecover 
an  estate  in  violation  of  his  own  covenant ;  and  it  is  wise  policy 
to  repress  litigation  and  to  prevent  a  circuity  of  actions,  when 
better  or  equal  justice  may  be  administered  in  a  single  suit.  By 
such  a  grant  with  general  warranty,  nothing  passes,  nor  indeed 
can  possibly  pass,  excepting  the  title  wluch  the  grantor  has  at 
the  time  of  the  grant ;  but  he  is  estopped  to  set  up  a  title  subse- 
quently obtained  by  him,  because  if  he  should  recover  against  his 
grantee,  the  grantee  in  his  turn  would  be  entitled  to  an  action 
against  the  grantor,  to  recover  the  value  of  the  land.  The  prin- 
ciple of  estoppel,  therefore,  not  only  prevents  multiplicity  of 
suits,  but  is  sure  to  administer  strict  and  exact  justice,  whereas  if 
the  grantee  were  driven  to  his  action  to  recover  the  value  of  the 
land,  exact  justice  might  not  be  obtained,  because  the  land  might 
possibly  not  be  esteemed  at  its  just  value. 

§  658.  If  a  grantor  either  expressly  or  by  necessaiy  implica- 
tion, conveys  an  estate  in  fee  simple,  his  heirs  are  estopped  from 
denying  that  he  had  such  an  estate  and  passed  it  by  the  deed  to 
the  grantee.'  A  person  having  only  an  equitable  title  coTiveys 
the  land  and  subsequently  acquires  the  legal  title,  it  must  inure 
to  the  benefit  of  his  grantee  against  intervening  judgment 
creditors  of  the  grantor.  A  depd  purporting  to  convey  the 
whole  title,  though  without  warranty,  estops  the  grantor  and  his 
privies  as  to  the  legal  title.'  If  an  executor  convey  an  equitable 
interest  in  land  before  the  issuing  of  a  patent,  and  a  patent  sub- 
sequently issued  in  the  name  of  the  executor  it  inures  to  the 
benefit  of  the  grantee  by  way  of  estoppel.'  So  although  the 
church  wardens  of  a  parish  are  not  capable  of  holding  lands  and 
a  deed   to  them  and  their   successors  in   ofiice   forever,  cannot 

'  Van  Rensselaer  v.Kearnj^  11  How-  Fletcher  v.  Wilson,  9Miss.  376;  !Morri- 

ard.  207;  Carbrey  v.  WiUis,  7   Allen,  son  v.  Caldwell,   5  Mon.    476;  Beard 

364;  Goucheuor    v.    Mowry,  23    111.  v.  IJriggs,  1   J.  J.    Marsh.   22;  Carter 

331;    Wead   v.    Larkins,  54  111.   489;  v.  Chaudron,  21  Ala.  72. 
Carter  v.  Chaudron,  21  Ala.  72.  ^  Lewis  v.    Baird,   3    McLean,    57; 

*  Lamar  v.   Simpson,   1  Rich.    71,  Zants  v.  Courcelle,  16La.  96. 


Title  by  Estoppel.  793 

operate  by  way  of  grant,  yet  where  it  contains  a  covenant  of 
general  warranty,  binding  the  grantors  and  their  heirs  forever,  it 
may  operate  by  way  of  estoppel  to  confirm  to  the  chm'ch  and  its 
privies  the  perjDetnal  and  beneficial  estate  iu  the  lands.'  An 
assignment  of  a  patent  before  a  patent  is  obtained  is  a  good 
transfer  of  the  right  of  the  patentee  when  he  obtains  a  patent, 
and  he  will  be  estopped  from  setting  np  any  adverse  title.^ 
Where  a  grantor  conveys  land,  with  waiTanty  in  which  he  has 
nothing  at  the  time,  he  is  not  only  estopped  from  claiming  in 
opposition  to  his  deed,  but  the  estate  which  subsequently  vests  in 
liim  is  bound  by  the  estoppel  and  is  transferred  by  the  operation 
of  the  estoppel  to  the  grantee.  A  fine  levied  by  an  heir  binds  his 
estate  afterwards  acquired  by  descent.'  So  where  a  testator  was 
disseized  and  died,  having  by  his  will  made  two  of  his  sons 
executors,  with  power  to  sell  his  lands,  they  did  so  as  executors, 
and  afterwards,  together  with  the  other  heirs,  brought  ejectment 
against  the  purchaser  on  the  ground  that  tJie  testator  having  been 
disseized  nothing  passed  by  their  deed.  But  the  court  held,  tliat 
they  were  estopped  to  deny  the  effect  of  their  deed,  by  claiming 
the  land  themselves.*  Where  executors,  having  power  to  sell  and 
convey  real  estate,  do  sell  with  covenants  of  warranty,  such 
covenants  estop  the  devisees  from  setting  up  and  asserting  an 
outstiinding  title  against  the  vendee.^  A  husband,  entitled  as 
such  to  an  estate  for  life,  conveyed  the  estate  in  trust  for  his 
wife,  in  order  to  avoid  his  creditors,  covenanting  against  the 
claims  of  all  persons  claimijig  under  him.  He  then  went  into 
insolvency,  and  his  assignee  sold  the  estate,  on  the  ground  that 
his  former  deed  was  void  as  against  creditors,  and  the  husband 
himself  purchased  it.  But  it  was  held,  that  he  was  estopped  by 
his  former  deed  to  set  up  a  title  against  his  grantee.  The  defect 
in  the  title  was  like  an  incumbrance  created  by  himself,  against 
which  he  had  covenanted,  and  by  removing  it,  he  had  done  no 
more  than  he  had  by  his  covenant,  engaged  to  do.' 

§  659.  Where  the  estoppel  of  a  conveyance  binds  the  after 

1  Mason   v.  Muncaster,   9    Wheat.  ''  Poor  v.  Robinson,  10  Mass.  136. 

445;  Terrett  v.  Taylor,  9  Crancb,  43.  *  Robertson  v.    Gaines,  2  Humph. 

"  Herbert  v.    Adams,  4  Mason,  15.  367. 

»  Helps  V.  Herefurd,2  B.  &  Aid.  243.  «  Gibbs  v.  Thaj-er,  6  CiiSh.  30. 


794  The  Law  of  Estoppel. 

acquired  estate  in  the  land  conveyed,  it  extends  beyond  the 
immediate  parties  and  inures  in  favor  of  all  who  derive  title 
from  the  grantor  by  descent  or  purchase  according  to  the  measure 
of  their  respective  interests,  and  subject  to  the  provisions  of  the 
deeds  under  which  they  hold.  A  second  grantee  will  therefore, 
ordinarily  be  entitled  to  the  benefit  of  the  estoppel,  and  enforce 
it  against  the  original  grantor,  in  the  same  manner  as  the  first.* 

§  660.  Deeds  defeasible  by  way  of  mortgage,  are  as  much 
within  the  rule  as  if  they  were  absolute,  and  the  after  acquired 
title  inures  to  the  benetit  of  tlie  mortgagee.*  It  extends  beyond 
express  warrantees  to  those  arising  by  implication  from  the  terms 
of  the  grant.^ 

§  661.  The  application  of  the  doctrine  of  estoppel  to  deeds  and 
conveyances  of  various  estates  in  land,  has  in  like  manner  been 
applied  to  mortgages,  on  two  grounds.  First,  that  it  is  an  absolute 
conveyance.  Second,  on  the  ground  that  from  the  covenants  in 
the  instrument  the  intention  of  the  mortgagor  has  been  ascer- 
tained to  be  that  he  not  only  hypothecated  the  interest  he  then 
had,  but  any  that  he  might  subsequently  acquire,  necessary  to 
create  a  perfect  or  clear  title.  A  mortgagor  always  gives  absolute 
covenants  for  title,  for  those  who  loan  money  generally  require 
every  possible  security  for  its  re-payment  and  notwithstanding 
these  covenants,  the  title  is  investigated  on  every  mortgage  with 
greater  strictness  than  on  a  purchase.  A  mortgagee  being 
regarded  as  a  purchaser,  is  entitled  to  the  benefit  of  covenants 
running  with  the  land.*  The  effect  of  a  mortgage  depends  on  its 
meaning,  as  collected  from  its  language,  and  whether  its  operation 
should  be  limited  to  the  interest  which  the  mortgagor  has  at  the 
time,  or  extend  to  that  which  he  may  subsequently  acquire,  will 
depend  upon  all  the  recitals  and  stipulations  which  it  contains, 
rather  than  on  the  effect  of  any  particular  clause  in  the  words  of 


'  Scoffiu  V.  Grandstaff,  13  Kas.  467;  373;  Lloyd  v.    Quimby.    5   Ohio  St. 

Potts  V.  Dowdal],  3  Houst.  369.  262;    Andrews   v.    Wolcott,  16   Barb. 

2  Amounet  V.  Auuis,  16  La.  An.  237.  21;   White  v.    Whitnej-.    3    Met.   SI; 

2  Do  Wolf  V.    Ilayden,  21  111.52.").  Astor  v.  Miller,  3  Paige,  68;   Varick 

*  Devin   v.    Hendershott,  33  Iowa,  v.    Bnggs,   6  Paige,    334;    Butler  v. 

192;   Porter  v.    Green,   4  Iowa,  571;  Seward,    10    Allen,    466;     Tuilts   v. 

Lockwood   V.   Sturdevant,    6    Conn.  Adams,  8  Pick.  547. 


Title  by  Estoppel.  795 

grant  bj  which  the  title  is  passed,  or  the  covenants  bj  which  it  is 
assigned  and  fortified.  Whether  an  after  acquired  interest  will 
pass  by  the  estoppel  of  a  prior  conveyance  or  mortgage,  depends 
upon  tiie  meaning  of  the  instrument,  &s  manifested  by  its  lan- 
guage. When  the  intention  is  to  incumber  the  land  and  not 
merely  the  title  which  the  mortgagor  has  at  the  time,  an  estoppel 
arises  and  renders  it  effectual.  Whenever  the  terms  of  the  instru- 
ment or  the  covenants  which  it  contains  clearly  show  that  it  was 
meant  to  convey  an  absolute  and  indefeasible  title  to  the  mort- 
gagee as  security,  and  not  merely  that  which  the  mortgagor  had 
at  the  time  of  its  execution,  as  where  the  money  loaned  is  used 
by  the  mortgagee  in  dischai'ging  liens  and  incumbrances  then 
existing  on  the  land  ;  it  will  bind  and  pass  every  interest  or  estate 
which  may  vest  in  the  mortgagor  subsequently  to  its  execution, 
whether  the  warranty  it  contains  be  general  or  special,  and 
although  it  may  contain  no  warranty  whatever.' 

§  662.  The  doctrine,  that  a  grantee,  from  one  who  had  no 
title  at  the  time  of  the  conveyance,  but  has  subsequently  acquired 
one,  takes,  it  by  estopjpel  by  virtue  of  the  covenants  in  the  deed, 
is  applicable  to  mortgages.  Thus  a  party  who  is  in  actual  posses- 
sion of  land,  but  without  title,  mortgages  it  with  warranty,  and 
afterwards  acquires  a  good  title  by  purchase,  the  warranty  takes 
immediate  effect  on  the  title  so  acquired  and  transfers  it  to  the 
mortgagee,  not  only  as  against  the  mortgagor  himself,  but  those 
claiming  under  him  subsequently  to  the  conveyance.     So  where 

»  Clark  V.  Baker,  14  Cal.  612;   Van  Boone  v.    Armstrong.    87    Ind.    1G8; 

Rensselaer  v.  Kearney,  11   How.  322;  Elder  v.  Derby,  98  111.  228;  Christy  v. 

Hoyt  V.  Dimon,  5  Conn.  479;  Wanzer  Dana,  42  Cal.  179;  Kirkaldie  v.  Lana- 

V.  Blanchard,  3Mich.ll;  Crossv.  Rob'-  bee,  31  Cal.  445;  Camp  v.  Grider,  62 

inson,  21  Conn.  379;  Bogy  v.  Shoab,  Cal.  20;  Locker  v.  Riley,   30  N.  J.  E. 

13  Mo.  379;  Cooke  v.  Brogan,  5  Ark.  104;  Jones  v.  Reese,  65  Ala.  134;  Fair 

699;  Frink  V.  Darst,  14  111.  304;  Palmer  v.    Howard,    6   Nev.    304;    Floyd   v. 

V.    Smith,    10  N.  Y.  303;  Gotham  v.  Morrison,   40  Iowa,    188;  Ins.  Co.  v. 

Gotham,   55  N.  Y.  440;  Morrison   v.  Woodbury,  45  Me.  447;   Boisclair  v. 

Wilson,  30  Cal.  344;  Rceder  v.  Craig,  Jones,  36  Ga.  499;  Strong  v.  Waddcll, 

3  McCord,  411;  Reed  v.  Shepley,  6  Vt.  56  Ala.  411;  Walker  v.   Sedgwick,  8 

602;  Conover  v.   Porter,  14  Ohio  St.  Cal.    398;  Allen  v.  Lathrop,   46  Ga. 

450;  Washabaugh  v.  Entriken,  34  Pa.  133;  Newton  v.  McLean,  41  Barb.  285; 

St.  74;  French  v.  Spencer,  21   How.  Lee    v.    Porter,    5    Johns.    Ch.    268; 

228;  Loan  Co.  v.  King,  58  Iowa,  598;  Palmer  v.  Mead,  7  Conn.  147;  Blake 

more  v.  Tabor,  22  Ind.  466. 


79G  The  Law  of  Estoppel. 

one  mortgaged  land  which  was  at  the  time  subject  to  a  judgment 
lien  (the  deed  containing  what  was  equivalent  to  a  warranty), 
and  then  took  the  benefit  of  the  bankrupt  law,  and  afterwards 
purchased  the  property  When  sold  under  the  judgment  lieu,  he 
was  estopped  by  his  covenant  from  setting  up  such  after  acquired 
title  to  defeat  the  mortgage.'  A  person  who  contracting  an 
obligation  to  another,  grants  a  mortgage  on  property  of  which  he 
is  not  then  the  owner,  the  mortgage  is  valid,  if  the  debtor  ever 
afterwards  acquires  the  ownership  of  the  pi'operty  by  whatever 
right.  That  is,  a  subsequently  acquired  legal  title  by  the  mort- 
gagor inures  to  the  beneiit  of  the  mortgagee.'  To  iHustrate  the 
application  of  this  doctrine  a  few  cases  are  given.  Thus,  where 
one  having  no  title  to  lands  e.xecutes  a  mortgage  thereon  with 
covenants  of  seisin  and  of  title,  and  afterward  acquires  title,  it 
inures  to  the  benefit  of  the  mortgagee,  and  the  mortgagor  and  his 
privies  in  estate,  in  blood  and  in  law,  are  estopped  from  question- 
ing that,  at  the  date  of  the  mortgage,  the  mortgagor  had  title. 
A  record,  therefore,  of  the  mortgage,  prior  to  the  acquisition  of 
title  by  the  mortgagor,  is  constructive  notice  to  a  subsequent  pur- 
chaser in  good  faith,  and,  under  the  recording  act,  gives  it 
priority  to  his  title. ^  So  where  a  person  mortgaged  the  land  upon 
which  he  resided,  which  was  part  of  the  public  domain,  and  sub- 
sequently acquired  the  title  to  the  land,  such  title  inured  to  the 
benefit  of  tbe  mortgagee.*    So  where  A.  mortgaged  to  C,  with  the 

'  Bush    V.    Cooper,    18    How.    82;  G12;  Bailey  v.  Academy,  12  Mo.  174; 

Jarvis  v.  Aikciis,  25  Vt.  G35.  Amounet  v.  Annis,  16  La.  225;  Jiivvig 

^Bybee   v.    Hageman,  66   111.    519;  v.  Aiken.  25  Vt.  635;  McCaa  v.Woolf, 

Hitchcock    V.    Fortier,    65    111.    239;  42  Ala.  389 ;  Jarvis   v.  Deane,  56   Me. 

Krcichbanm   v.    Melton,    49   Cal.   51;  9;   Cuuu'ngham   v.    Pattcc,  99   ^fass. 

Tetit   V.    Munson,   63   Barb.  31;   Mo-  248;  Crompt on  v.  Pratt,  105  Mass.  255; 

Crackin  v.    Wright,    14  Johns.    194;  Blakeslee   v.    lus.    Co.,  57  Ala.  205; 

King  V.  Gilson.  32  111.  348;  Gochcnour  Tcwksbury  v.    Provizzo,  12   Cal.  20; 

V.  Movviy,  33  111.  331;  Jones  v.  King,  W^right   v.    Dc   Grotf,    14   Midi.  1G4; 

25  111.  388;  Somes  v.  Skinner.  3  Pick.  Kelly  v.  Jenues^,  50  .Ale.  455;  Kii<s  v. 

52;   Walk  v.  Wiliaid,  13   N.  H.  389;  Alpaugh,   118  Mass.   369;   Knight   v. 

Massey  v.  Papin,  24  How.  362;  Philly  Thayer,  125  Mass.  25;   Thompson   v. 

V.  Sanders,  11  Ohio  St.  490;   Bond   v.  Justice,   88   N.    C.  264;   Goodwin  v. 

Swcaringen,    1    Ohio,    395;    Bush   v.  Kcncy,  49  Conn.  282. 

Cooper,  18  How.  82;  White  v.  Patten,  "•  Tcfft  v.  Munson,  57  N.  Y.  97. 

24  Pick.  324;  Clark  v.  Baker,  14  Cal.  *  Christy  v.  Dana,  34  Cal.  548;  Mas- 
sey V.  Papin,  24  How.  363. 


Title  by  Estoppel.  797 

usual  covenants  and  warranties,  certain  real  estate  to  which  he  had 
no  title  ;  he  then  procured  his  discharge  in  bankruptcy,  and  after- 
ward obtained  a  title  to  the  land,  simultaneously  mortgaging  back 
to  his  grantor.  In  a  suit  to  forclose  the  first  mortgage,  A.  was 
estopped  to  deny  his  title  at  the  date  of  its  execution,  his  dis- 
charge was  ineffectual  to  vary  the  legal  effect  of  this  mortgage.' 
So  where  A.  mortgaged  land  to  B.,  then  under  a  previous  incum- 
brance, unknown  to  either  ;  the  land  was  sold  under  that  incum- 
brance, and  bought  by  C,  who  sold  it  to  A.  As  A.  was  bound 
to  remove  the  prior  incumbrance,  he  could  derive  no  other 
advantage  from  buying  the  title  as  he  did.^  A  release  by  a  mort- 
gagee to  the  holder  of  the  equity  of  redemption  passes  by  the 
warranty,  contained  in  the  prior  grant  by  the  releasee,  and  gives 
the  grantee  an  unincumbered  title  against  a  subsequent  assign- 
ment of  the  mortgage,  notwithstanding  an  allegation  that  a  mort- 
gage being  a  chattel  interest,  and  that  the  rules  applicable  to 
estates  in  lands  did  not  govern  mortgages.'  This  is  on  tlie  prin- 
ciple that  a  subsequently  acquired  title  inures  by  way  of  estoppel 
to  the  benefit  of  a  grantee  where  there  is  a  covenant  of  warranty, 
or  where  it  distinctly  appears  upon  the  face  of  the  instrument, 
by  recital  or  otherwise,  that  the  intent  of  the  parties  was  to  con- 
vey and  receive  reciprocally  a  certain  estate, 

§  663.  The  effect  of  covenants  to  pass  title  by  estoppel,  is 
that  the  estoppel  operates  as  a  conveyance  of  the  title  of  the 
party  estopped  to  the  opposite  party.*  Thus,  in  an  action  for  the 
recovery  of  mortgaged  premises,  brought  by  the  mortgagee  against 
the  mortgagor  after  foreclosure,  the  mortgagor  is  estopped  by 
the  covenants  in  his  deed  to  the  mortgagee  from  setting  up  a 
prior  claim,  interest  or  lease,  to  himself  from  a  prior  mortgagee  of 
the  premises  on  a  mortgage  given  by  himself.^  If  the  title  of  a 
co-tenant  entitled  to  disaffirm  a  conveyance  or  lease  becomes 
vested  in  the  one  by  whom  the  instrument  was  executed,  the 
newly  acquired  title  of  the  lessor  or  grantee  will  inure  by  estop- 


>  Chamberlain  v.  Meeder,  16  N.  H.      C.)  463. 
381 ;    Stewart  v.   Anderson,    10  Ala.  >  Mickle  v.    Townsend,    18  N.  Y. 

504.  575. 

*  Jones  V.  Kingsey,  2  Jones  Eq.  (N.         ^  McCaa  v.  Wolf,  42  Ala.  389. 

5  Jarvis  V.  Deane,  56  Me.  9. 


798  The  Law  of  Estoppel. 

pel  to  the  benefit  of  the  lessee  or  the  grantee.*  Thus  A.  con- 
veyed ^vithout  warranty  to  B.,  who  mortgaged  back  for  the  price, 
also  without  warranty.  Under  a  statute,  which  provides  that  if 
any  one  conveys  land,  purporting  to  convey  the  fee  simple,  and 
shall  not  then  own  the  fee,  but  shall  afterwards  acquire  it,  it  shall 
immediately  pass  to  the  grantee,  a  good  title  subsequently 
acquired  by  B.  inured  to  the  benefit  of  A.  under  the  mortgage. 
The  mortgage  in  the  above  case  granted,  bargained,  sold,  released, 
remised  and  conveyed  to  the  grantee,  his  heirs  and  assigns,  for- 
ever.^ In  a  later  case,  where  a  mortgage  had  been  executed  by 
a  party  who  had  proceeded  under  the  homestead  laws  of  the 
United  States,  the  same  court  said  :  "  Had  the  deed  been  an 
absolute  conveyance  in  fee  instead  of  a  mortgage  in  fee,  any 
subsequentl}'^  acquired  title  under  our  statute  concei'ning  con- 
veyances would  have  inured  to  the  benefit  of  the  plaint- 
iff. The  fact  that  the  title  subsequently  comes  from  the 
United  States  would  make  no  difference.  There  is  noth- 
ing in  the  homestead  act  of  1862  forbidding  a  voluntary  alien- 
ation by  the  grantee  under  that  act.  The  same  principle  ap- 
plies to  a  .mortgage  of  the  fee.  The  title  will  pass  not  merely 
in  consequence  of  the  enforcement  of  the  pa3'ment  of  a  debt  by 
the  ordinary  process  of  the  courts,  but  in  consequence  of  the 
voluntary  contract  of  the  party  in  executing  the  mortgage.  The 
mortgagor  of  the  fee  is  estojpped  from  denying  the  existence  of 
the  lien  which  he  has  attempted  to  create,  and  from  defeating  by 
his  own  act  the  enforcement  of  the  lien  against  the  propert}' 
thus  mortgaged.^  We  think  the  plaintiff  was  entitled  to  the. 
ordinary  judgment  for  a  sale  of  the  mortgaged  property  without 
any  exception  of  rights  subsequently  acquired  by  the  mortgagor 
under  the  homestead  act  of  1862."* 


'  Cunningliam  v.    Pattee,  99  Mass.  v.  Mattox,  Monis  (la.)  369;  Picrson 

348.  V.    David,  1  Io\va,26;  Camp  v.  Smith, 

*  Clark  V.  Baker.  14  Cal.  612.  2  Minn.  172;  Hope  v.  Stone,  10  Minn. 

3  Clark    V.     Baker,    14    Cal.     633;  141;   Bush  v.   Marshall,  6  How.  288; 

Tartar  v.    Hall.    3   Cal.  263;   Haffley  Threadgill  v.   Pintard,    12   How.  37; 

V.    Maier,    13  Cal.    14  ;    Whitney   v.  Fackler  v.  Ford,  24  How.  323;  Plielps 

Buckman,    13   Cal.    538;    Warburlon  v.  Kellogg,  1.5  111.  13o. 

*  Kirkaldie  v.  Larrabee,  31  Cal.4o5. 


Title  by  Estoppel.  799 

§  664:.  But  there  is  an  exception  to  this  well  settled  rale,  and 
the  exception  is  made  for  the  benefit  of  the  mortgagee.  Thus, 
the  rule  that  where  a  deed  conveys  a  greater  interest  than  tlie 
grantor  at  the  time  possesses,  an  after  acquired  title  inures  to  the 
benefit  of  his  grantee,  is  subject  to  an  exception  where  such 
grantor  executes  to  his  grantee  a  mortgage  to  secure  a  part  of  the 
purchase  money  on  the  premises  subsequently  conveyed  by  the 
latter  to  the  former.  Accordingly,  where  A.  executed  a  deed  of 
conveyance  for  premises,  to  which  he  then  had  no  title,  to  B., 
and  A.  afterward  purchased  and  received  a  deed  for  the  prem- 
ises from  C,  the  owner,  and  executed  back  to  him  a  mortgage 
thereon  to  secure  a  part  of  the  purchase  money,  held,  that  the 
rights  of  C.  nnder  his  mortgage  were  not  affected  by  the  prior 
conveyance  from  A.  to  B.'  Where  the  interest  of  a  purchaser  of 
land  under  contract  of  sale  is  mortgaged,  and  such  purchaser 
completes  his  purchase  and  obtains  the  title  to  the  land,  it  inures 
to  the  benefit  of  the  mortgagee.^  So  where  indescriptive  war- 
rants, on  which  the  purchase  money  had  been  paid,  were  mort- 
gaged June  14,  describing  them  as  "all  those  tracts  of  land  sur- 
veyed or  to  be  surveyed  by  virtue  of  the  warrants,"  &c.  The 
surveys  were  made  June  30.  The  mortgage  bound  the  land 
when  surveyed;  "to  be  surveyed  "  being  a  covenant  that  the 
land  should  be  surveyed.' 

§  665.  Though  at  law.  a  mortgage  cannot  operate  on  prop- 
erty not  m  existence  at  the  time  the  mortgage  is  executed,  courts 
of  equity  will  enforce  specific  execution  of  contracts,  and  give 
relief  in  numerous  cases  of  agreements  relating  to  lands  and 
things  in  action,  or  to  contingent  interests  or  expectancies,  upon 
the  maxim  that  equity  considers  that  done,  which  being  agreed 
to  be  done,  ought  to  be  done.'  The  English  rule  is,  that  a  cove- 
nant to  charge  or  dispose  of,  or  affect  lands  hereafter  acquired, 
operates  in  equity  upon  lands  so  acquired.^     But  that  no  charge 

J  Morgan  v.  Gniliam,  35  Iowa,  213.  307. 

2  Sinclair  V.  Armitage,  12  N.  J.  Eq.  »  Tryon  v.  Munson,  77  Pa.   St.  250. 

174;  Bull  V.  Sykes,  7  Wis.  449;  Dodge  ^  Sillers    v.    Lester,   48    Miss.    513; 

V.  Silverthorn,   12   AVis.  644;    ]\Iov,iy  Stevens   v.  R.  R.    Co.,  50  How.    Pr. 

V.  Wood,  13    Wis.    413;     Fenuo    v.  104. 

Sayre,  3  Ala.  458;  Smith  v.   Crenier,  »  Metcalf  v.  Archbi.sliop,  1  M.  &  C. 

71  111.  175;  Jarvisv.  Dutcber,  16  Wis.  547;  Lyde  v.  Mynn,  4  Sim.  505;  Tooke 


800  The  Law  of  Estoppel. 

will  be  credited  except  where  the  covenant  refers  to  particular 
property,  or  where  property  has  been  acquired  with  an  intention 
to  perform  or  satisfy  the  covenant.'  Thus,  the  Morris  Canal  and 
Banking  Company,  of  New  Jersey,  was  originally  authorized  to 
construct  a  canal  from  the  Delaware  to  the  Passaic.  By  a  subse- 
quent statute,  they  were  authorized  to  extend  the  canal  to  the 
Hudson,  near  Jersey  City.  Afterwards,  they  were  authorized  by 
statute  to  borrow  money,  and,  to  secure  the  loan,  to  hypothecate, 
by  way  of  trust,  mortgage,  or  otherwise,  "  the  Morris  canal,  with 
all  its  privileges,  appendages,  and  appurtenances,  and  all  the  jn'op- 
erty  and  cliartered  rights  of  the  company."  The  company  then 
executed  a  mortgage  to  secure  a  loan  "  upon  all  and  singular  the 
Morris  Canal,  so  called,  being  the  canal  authorized  by  tlie  laws  of 
the  State  of  New  Jersey,  as  the  said  canal  has  been  laid  out 
through  the  several  counties  [naming  them  through  the  State], 
and  being  now  in  the  course  of  completion  from  the  Delaware  to 
the  Hudson  River,  together  with  all  and  singular  the  dams,  aque- 
ducts, locks,  planes,  water  courses,  privileges,"  &c.  At  the  time 
of  the  execution  of  the  mortgage,  the  canal  had  not  been  con- 
structed from  the  Passaic  to  the  Hudson,  nor  had  the  land  been 
purchased  upon  wliich  the  canal  was  subsequently  constructed, 
but  the  route  had  been  surveyed,  though  it  was  afterwards 
varied.  Held,  that  the  mortgage  covered  the  entire  canal  from 
the  Delaware  to  the  Hudson,  and  that  the  pier  constructed  at 
Jersey  City,  if  constructed  as  an  apj)endage  to  the  canal,  would 
also  pass  by  the  mortgage,  as  well  as  a  feeder  to  the  canal,  and 
everything  connected  with  the  canal. ^  So,  a  mortgage  given 
upon  a  ditch  or  flume  in  process  of  construction,  without  any 
special  provision,  would  include  all  improvements  or  fixtures 
then  on  the  line,  located  for  the  flume,  as  well  as  those  which 
might  thereafter  be  put  thereon. ^ 

§  006.  The  doctrine  is   thus   declared:     "A   person  cannot 
grant  a  thing  which  he  has  not,  '  ille  ?iO)i  hahet,  non  dat  y'  and 


V.  Hastings,  2  Vern.  97;  Lewis  v.  Mad-  105  Mass.  255. 

docks,  17  Ves.  48.  ^  Wiilink  v.  Morris  Canal  &  Bank- 

'  Countess  of  Morniugton  v.  Keane,  ing  Co.,  4  N.  J.  Eq.  377* 

2  DeG.  &  J.  292;  Roundell  v.  Breary,  »  Union,    &c.    Co.   v.  Murphy,  &c. 

3  De  G.  &  J.  319;  Crompton  v.  Pratt,  Co.,  22  Cal.  620. 


Title  by  Estoppel.  801 

many  authorities  are  referred  to  at  law  to  prove  the  proposition, 
and  many  more  raiglit  have  been  added  from  cases  in  equity  ; 
for  eqiiity  no  more  than  law  can  d^ny  it:  the  thing  itself  is  an 
im/possihility.  It  mtly  at  once,  therefore,  be  admitted,  whenever 
a  party  undertakes,  by  deed  or  mortgage,  to  grant  property,  real 
or  personal,  in ^rcEsenti^  which  does  not  belong  to  him,  or  has  no 
existence,  the  deed  or  mortgage,  as  the  case  may  be,  is  inopera- 
tive, and  this  either  in  a  court  of  law  or  equity.'"  A  mortgage 
which  professes  to  convey  property  not  in  existence  at  the  time, 
is,  as  a  conveyance,  void,  simply  because  there  is  nothing  to  con- 
vey. So  a  conti'act  which  purports  to  transfer  property  not  in 
existence,  cannot  operate  as  an  immediate  alienation,  simply 
because  there  is  nothing  to  transfer  ;  but  if  a  mortgagee  has 
agreed  to  mortgage  property,  real  or  personal,  of  which  he  was 
not  possessed  at  the  time  of  making  the  contract,  and  afterwards 
becomes  possessed  of  the  property,  which  is  of  such  a  nature  that 
specific  performance  would  be  decreed,  the  beneficial  interest  in 
the  propert}'  is  transferred  to  the  mortgagee  as  soon  as  the  prop- 
erty is  acquired.  And  the  title  of  the  mortgagee  or  assignee 
Avill  prevail,  not  only  against  a  judgment  creditor,  but  against  a 
purchaser  for  value  of  the  specific  thing,  unless  he  has  fortified 
himself  with  actual  possession,  without  knowledge  of  the  mort- 
gage. 

§  667.  It  is  said  that  future  property  can  never  be  the  subject 
of  mortgage.*  Thus,  a  man  cannot  execute  a  valid  mortgage 
upon  land  which  he  expects  to  acquire  at  some  future  time.  Yet 
where  a  person  has  some  claim  of  title  to  land,  and  he  subse- 
quently perfects  his  titie,  there  is  no  reason  why  he  cannot  hy- 
pothecate it.  Where  no  rule  of  law  is  infringed,  and  the  rights 
of  third  persons  are  not  prejudiced,  courts  of  equity  will,  in 
proper  cases,  give  effect  to  mortgages  of  subsequently  acquired 
property.'  Thus,  where  a  mortgage  is  made  of  a  tract  of  land, 
and  the  mortgagor  erects  a  house  upon  the  land  without  any 
agreement  with  the  mortgagee,  it  becomes  part  of  the  land,  and 


»  Pennock  v.  Coe,  23  How.  117.  nock  v.  Coe,  23  How.  112;  Dunham 

*  AnimoDetlv.Amis.ieLa.Ann.  235.  v.  R.  R.  Co.,  1   Wall.  254;  U.  S.    v. 

3  Beall  V.  White,  94  U.  S.  382;  Pen-  R.  R.  Co.,  13  Wall.  362. 
Vol.  I.— 51 


802  Thk  Law  of  Estoppel. 

passes  with  it  to  the  mortgagee.'  Upon  the  same  principle,  a 
ujortgage  of  a  raih-oad  Avith  the  appurtenances,  is  held  to  pass 
after  acquired  property  ;  it  is  in  fact  only  where  such  property 
is  subsequently  annexed  or  held  to  be  part  of  the  realty  that  the 
doctrine  is  applied  in  order  to  prevent  a  debtor  from  withdraw- 
ing property  which  he  has  stipuhited  shall  become  bound  hy  the 
contract  of  pledge.  This  principle  is  applicable,  witli  an  excep- 
tion in  favor  of  third  parties,  where  their  rights  intervene. 
Where  a  mortgage  attaches  to  after  acquired  property,  and  addi- 
tions are  made  to  the  premises,  after  the  title  becomes  vested  in 
the  mortgagor,  by  the  erection  of  buildings,  or  the  construction 
of  embankments,  or  the  laying  of  rails  for  a  track,  such  addi- 
tions become  part  of  the  mortgaged  premises,  as  they  are  made, 
on  the  maxim,  quicqu  id  plantain  r  solo,  solo  cedit,  and  inure  to  the 
benefit  of  the  mortgagee.  But  where  the  after-acquired  prop- 
erty comes  into  the  hands  of  the  mortgagor,  subject  to  incum- 
brances or  liable  to  liens,  the  mortgage  attaches  to  the  property 
in  the  condition  in  which  it  comes  to  the  mortgagor's  possession, 
subject  to  such  liens  and  incumbrances  as  are  then  upon  it.' 

§  668.  The  principle  is,  that  if  any  person  who  in  terms 
conveys  land  or  any  specific  interest  in  land  with  warranty,  and 
does  not  own  it,  afterwards  acquires  the  same  land  or  specific 
interest,  such  acquisition  inures  to  the  benefit  of  the  grantee, 
because  the  grantor  and  those  wlio  are  privy  in  estate  with  him, 
are  estopped  to  deny  against  the  terms  of  the  warranty  that  he 
had  the  title  in  question.  The  warranty  is  co-extensive  with  the 
estate,  right  or  interest  which  the  deed  purports  to  pass.  Thus, 
where  A.,  wlien  he  executed  a  deed  to  B.,  had  no  title,  but  his 
deed  was  an  attempt  to  convey  the  fee,  and  it  was  a  deed  Avith  a 
warranty,  this  shows,  first,  that  the  intention  was  that  the 
land,  the  whole  interest  in  the  land,  should  be  conveyed  to  B. ; 
secondly,  that  B.  had  paid  the  purchase  money.  Such  being  the 
intention,  the   consequence  would   be   that  if    A.  should  after- 


'  Matzon  v.  Griffin,  78  111.  477.  459;  United  States  v.  R.  R.  Co.,  12 

8  Willink  V.  Canal  Co.,  4  N.  J.  Eq.      Wall.  362;   Williamson   v.  R.  R.  Co., 

377;  Dunham  v.  Railw.  Co.,  1  Wall.      29  N.  J.  Eq.  311;  Fosdick  v.  ScLall, 

254;  K.  R.  Co.  v.  Cowdrey,  11  Wall.      99  U.  S.  235;  Aldeu  v.  Garner,  32  III. 

32. 


.  Title  by  Estoppel.  803 

wards  acquire  the  title,  he  Avould  be  bound  to  convey  it  to  B., 
as  much  so  as  if  the  contract  were  one  standing  in  the  form  of  a 
bond  for  title.  This  would  be  the  consequence,  even  without 
the  warranty,  where  the  intention  was  clearly  expressed  in  the 
deed,  so  as  to  place  the  existence  of  a  fact  beyond  question,  or 
make  it  a  basis  of  the  contract.'  If  an  estoppel  could  not  oper- 
ate as  a  conveyance,  or  as  a  medium  through  which  the  title 
would  pass  to  him  in  whose  favor  the  estoppel  works,  the  title 
might  frequently  be  locked  up  in  him  and  his  heirs,  against 
whom  the  estoppel  operated  ;  and  the  party  for  whose  beneiit 
it  was  intended  might  find  himself  without  title,  and  unable  to 
recover  from  a  mere  intruder ;  for  if  the  title  to  the  after  acquired 
estate  did  not  pass  to  the  grantee  by  means  of  the  estoppel,  but 
it  only  precluded  the  grantor  from  asserting  an  after  acquired 
title,  it  would  be  difficult  to  see  how  he  could  recover  in  eject- 
ment from  one  who  had  no  title ;  to  show  title  in  another  would 
not  enable  him  to  recover,  and  he,  having  none,  could  not  main- 
tain the  suit.  To  give,  therefore,  the  full  effect  to  an  estoppel, 
it  is  clear  that  it  must  frequently  operate  to  pass  the  title. ^ 

§  669.  Rawle,  in  his  work  on  covenant  for  title,  says,  in 
regard  to  the  creation  of  estoppels  by  warranty,  ''  if  an  estoppel 
is  not  created  by  a  deed  taking  effect  und^r  the  statute  of  uses, 
and  if  a  warranty  in  that  deed  does  not  of  itself  create  an  estop- 
pel, how  is  an  estoppel  ci-eated,  and  what  is  the  true  principle 
that  appears  to  be  pruperly  deducible  from  the  many  authorities 
cited  ?  The  answer  to  this  question  might  be,  that  the  principle 
of  the  cases  seems  referable  to  a  familiar  rule  in  equity,  that  if  a 
man  contracts  for  the  sale  of  an  estate  which  he  has  not  at  the 
time  such  contract  is  entered  into,  and  he  afterwards  acquires 
such  a,n  interest  as  will  enable  him  to  make  good  his  contract, 
equity  will  compel  him  to  perform  it  and  make  good  the  title, 
and  that  the  presence  of  a  warranty  in  a  deed  purporting  to  con- 
vey an  estate,  has,  it  would  seem,  upon  strict  principle,  no  greater 

'  Goodson  V.  Beacham,  24  Ga.  150.  Wyman  v.    Harmon,    5    Gratt.    163; 

5  Bean  v.  Welsh,  17  Ala.  770;  Derby  Lewis  v.  Baird,  3  McLean,  56;  Valle 

V.  Jones,  27  :Me.  361;  Coe  v.  Persons,  v.  Clemens,    18  Mo.    490;   Gibson  v. 

43  Me.  436;  Hall  v.  Chaffee,  14  N.  H.  Choteau,  39  Mo.  566;  McCaa  v.  Wolf, 

326:    Wight    v.    Shaw,    5  Cush.    56;  42  Ala.  389. 


804  The  Law  of  Estoppel-. 

effect  than  an  averment  that  the  contract  between  the  vendor 
and  purchaser  is,  that  that  identical  estate  shall  beactuall}^  trans- 
ferred fi'oni  the  former  to  the  hitter  ;  and  such  an  effect  can  be 
produced  b)'  other  covenants  than  that  of  warranty,'  and  by 
other  parts  of  the  deed  than  the  covenants.'"  A  grantor  cou- 
vej'ing  by  deed  of  bargain  and  sale,  by  way  of  release  or  quit- 
claim of  all  his  right  and  title  to  a  tract  of  land,  if  made  in  good 
faith  and  without  any  fraudulent  representations,  is  not  respon- 
sible for  the  goodness  of  the  title  beyond  the  covenants  in  his 
deed/  A  deed  of  this  character  purports  to  convey,  and  is 
nnderstood  to  convey,  nothing  more  than  the  interest  or  estate 
of  which  the  grantor  is  seized  or  possessed  at  the  time,  and  does 
not  operate  to  pass  or  bind  an  interest  not  then  in  existence. 
The  bargain  between  the  parties  proceeds  upon  this  view,  and 
the  consideration  is  regulated  in  conforn)it3'  with  it.  If  other- 
wise, and  the  vendee  has  contracted  for  a  particular  estate,  or  for 
an  estate  in  fee,  he  must  take  the  precaution  to  secure  himself 
by  the  proper  covenants  of  title.  But  this  principle  is  applica- 
ble to  a  deed  of  bargain  and  sale  by  release  or  quit-claim,  in  the 
strict  and  proper  sense  of  that  species  of  conveyance.  And, 
therefore,  if  the  deed  bears  on  its  face  evidence  that  the  grantors 
intend  to  convey  and* the  grantee  expected  to  become  invested 
with  an  estate  of  a  particular  description  or  quality,  and  that  the 
bargain  had  proceeded  upon  that  footing  between  the  parties, 
then,  although  it  may  not  contain  any  covenants  of  title,  in  the 
technical  sense  of  the  term,  still  the  legal  operation  and  effect  of 
the  instrument  will  be  as  binding  upon  the  grantor  and  those 
claiming  under  him,  in  respect  to  the  estate  thus  described,  as  if 
a  formal  covenant  to  that  effect  had  been  inserted,  at  least  so  far 
as  to  estop  them  from  ever  afterward  denying  that  he  was  seized 
of  thj  particular  estate  at  the  time  of  the  convej'ance.* 

§  070.   "  Whatever  may  be  the  form  or  nature  of  the  convey- 

'  Wightman  v.   lieyuolds,  24  Mass.  E.  459;  Jackson  v.  Murray,  12  Johns. 

(380.  201;  iSteveas  v.  iSteveus,  13  Johns,  yiti; 

■■'  Jiawle  on  Cov.  for  Title,  454.  Filzhiigli   v.   Tyler,  13  B.  Mon.   559; 

=•  Van    Keusselaer    v.    Kearney,    11  Drake  v.  Koots,  2  CoJ.  T.  685;  Lowry 

How.  497.  V.  Williams,  13  Me.  281;   Jarnagiu  v. 

*  Haunon  v.  Cliristoplier,  34  N.  J.  Alairs,   1  Humph.    473;   Forlescue  v. 

iScattertliwaite.  1  Ired.  566. 


Title  by  Estoppel.  80o 

ance  used  to  pass  real  property,  if  the  grantor  sets  forth  on  tlio 
face  of  tlie  instrument,  by  way  of  recital  or  averment,  tJiat  he  is 
seized  and  possessed  of  a  particular  estate  in  tlie  premises,  and 
which  estate  the  deed  pnrports  to  convey,  or,  what  is  the  same 
tiling,  if  the  seizin  or  possession  of  a  particular  estate  is  affirmed 
in  the  deed,  either  in  express  terms  or  by  necessary  implication, 
the  grantor  and  all  persons  in  privity  with  him  shall  be  estopped 
from  ever  afterwards  denying  that  he  was  so  seized  and  possessed 
at  the  time  he  made  the  conveyance.'  The  estoppel  works  upon 
the  estate,  and  binds  an  after  acquired  tide  as  between  parties 
and  privies.  The  reason  is  that  the  estate  thus  affirmed  to  be  in 
the  party  at  the  time  of  the  conveyance  must  necessarily  have 
influenced  the  grantee  in  making  the  purchase,  and  hence  tbe 
grantor,  and  those  in  privity  with  him,  in  good  faith  and  fair 
dealing,  should  be  forever  thereafter  precluded  from  gainsaying 
it.  The  doctrine  is  founded,  when  properly  applied,  upon  the 
highest  principles  of  morality,  and  recommends  itself  to  the  com- 
mon sense  and  justice  of  every  one,  and  although  it  debars  the 
trurh  in  the  particular  case,  and,  therefore,  is  not  unfrequently 
characterized  as  odious  and  not  to  be  favored,  still  it  should  be 
remembered  that  it  debars  only  in  the  case  where  its  utterance 
would  convict  the  party  of  a  previous  falsehood,  and  imposes 
silence  on  a  party  only  when  in  conscience  and  honesty  he  should 
not  be  allowed  to  speak. "'^ 

§  671.  The  effect  of  the  covenant  is  that  the  title  acquired' 
by  the  grantor  who  has  conveyed  with  warranty,  inures  eo 
instanti  tliat  he  gains  the  title,  to  his  grantee  and  vests  in  him 
or  to  tiie  grantee  of  such  grantee  with  like  covenants.'  Many  of 
the  decisions  have   been   based  upon  the  ground  of  preventing 

'  Smith  V.  Williams,  44  Mich.  240.  151;  Doe  v.    Errington,  8  Scott,  210; 

■■^  Good  title  v.  Bailey,  2  Cowp.  601 ;  Bowman  v.    Taylor,  3  Ad.  &  Ellis, 

Beasley  v.  Burdon,  2   Sim.  &  S.  524;  278;  Fairbanks  v.  Williamson,  7  Me. 

Kees  V,  Lloyd.   Wight,   129;  Lainson  96;   Kight   v.    Buckuell,    3  B.  &  Ad. 

V.  Tremere,  1  A.   &  E.  792;  Stow  v.  281;  Knowles  v.  Kennedy,  88  Pa.  St. 

Wyse,  7  Conn.  214;   Penrose  v.  Grif-  444;   Somes  v.    Skinner,  3  Pick.  52; 

lith,  4  Binn.  231;  Denn  v.  Cornell,  3  Doe  v.  Kobinson,  51  Ala.  399;  Parker 

Johns.    Cas.  174;  Carver  v.  Jackson,  v.  Jones,  57  Ga.  204. 
4  Pet.   1;  Root  V.    Crook,    7  Pa.  St.         '^Crocker  v.  Pierce,    31  Me.    177; 

378;  McCall   v.  Grover,   4  W.  &  S.  Averill  v.  Wilson,  4  Barb.  180;  Jack- 
son V.  Bull,  1  John.  C.  81. 


806  The  Law  of  Estoppel. 

circuity  of  action.  Thus  it  was  held  tliat  an  after  acquired  estate 
would  pass,  although  the  covenantor  had  since  the  conveyance 
been  discharged  as  a  bankrupt,  the  breach  of  the  covenant  hav- 
ing happened  after  such  discharge.* 

§  672.  It  is  a  well  settled  doctrine  that  while  a  deed,  as  a 
present  conveyance,  transfers  only  the  title  which  the  grantor 
then  has,  if  it  is  a  deed  in  fee  with  warranty,  it  has  a  further 
operation  as  a  covenant  real,  running  with  the  land,  by  which 
the  grantor  and  his  heirs  are  bound  to  make  it  good,  so  that  if 
the  grantor  has  no  good  and  sufficient  title  to  the  estate,  yet  if 
either  he  or  they  subsequently  acquire  a  good  title,  it  imme- 
diately inures  to  the  benefit  of  the  grantee,  by  way  of  estoppel, 
to  the  same  extent  as  if  the  same  good  title  had  been  vested  in 
the  grantor  and  warrantor  at  the  date  of  the  execution  of  the 
deed  with  covenant  of  warranty ;  if  the  action  be  brought  in 
such  a  form  that  it  may  be  pleaded  by  way  of  estoppel ;  other- 
wise, by  way  of  rebuttal  to  the  claim  of  any  one  bound  by  the 
covenant  of  warranty."  Covenants  which  run  with  the  land  oper- 
ate as  estoppels.'     Estoppels  which  run  with  the  land,  and  operate 

1  Bush  V.  Cooper,  24  Miss.  613;   S.  len  v.  Sayward,  5  Me.  231;  Kelly  v. 

C,  18  How.  82.  Jemiess,  50  Me.  455;  Jackson  v.  Bull, 

"^  Cole  V.    Raymond,   9  Gray,  218;  1  Johns.  Cas.    81 ;  Jackson  v.  ]\Iats- 

Bates    V.    Norcross,    11     Pick.     14;  dorf,  11  Johns.    Cas.   1;    Jackson  v. 

Crocker  V.  Pierce,  31  Me.  177;  Bruu-  Stevens,  16  John.   40;  Brown  v.  Mc- 

dred  v.    Walker,    13  N.  J.    E.    240;  Cormick,    6    Watts,    60;    Logan    v. 

Washabaugh  v.  Entriken,  34  Pa.  St.  Moore,  7  Dana,  76;  Lewis  v.  Baird,  3 

74;  Clark  v.   Slaughter,  34  Miss.  65;  McLean,  56  ;    Bank  v.    Merserau,    3 

Kimball  V.  Schoff,  40  N.  H.  190;  Mor-  Bar!).   Ch.    528;    Irvine  v.    Irvine,   9 

rison  v.  Underwood,    20  N.    H.    372;  Wall.  617;  Warburton  v.   Mattox,  1 

Bell  v.  Twilight,  26  N.  H.  401;  Jewell  Morr.  (lu.)  367;  Carbrey  v.  Willis,  7 

V.  Porter,  31  N.  H.  29;  Clark  v.  Baker,  Allen,  364;  ]\Ioore   v.   Rake,  26  N.  J. 

14  Cal.  612;   De  Wolf  v.  Hayden,  24  L.  574;   Churchill  v  Terrell,  1  Bush, 

111.  525;  Rose  v.  Adams,  28^.  J.  L.  54;  French  v.  Spencer,  21  How.  228r 

160;  Bush   v.  Marshall,  6   How.  284;  Henderson  v.   Hackney,    23   Ga.  323; 

King  v.  Gilson,  32  111.  348;   Clark   v.  Goodson   v.    Beacham,    24   Ga.    150; 

Martin,  49  Pa.  St.  299;  Somes  v.  Skin-  O'Bannon  v.  Paramour,  24  Ga.  189; 

ner,   3  Pick.  52;  Carver  v.    Astor,  4  Gochenour  v.    Mo  wry,    33   111.    831; 

Pet.  83;  Jackson  v.  HolTman.  9  Cow.  Wark  v.  VViilard,  13  N.  H.  389;  Perry 

27;   Sinclair  v.  Jackson,  8  Cow.  586;  v.    Kline,  12  Cush.   118;  Kellogg  v. 

Doyle  v.  Peerless,  44  Barb.  239;  Fair-  AVood,  4  Paige,  578. 
banks  V.  Williamson,  7  Me.  100;  Al-         ^  Boyce    v.    Lougworth,    11  Ohio, 

235. 


Title  by  Estoppel.  807 

tliereon,  pass  estates  and  constitute  titles.  They  are  muniments 
of  title,  assuring  it  to  the  purchasers.  So  the  heir  of  one  who  is 
entitled  to  bounty  land,  assigned  his  right  after  entry,  he  is 
estopped  by  his  ancestor's  deed  from  setting  up  any  title  under  a 
patent  issued  in  the  name  of  his  beneficiary.'  If  a  tenant  for 
life  convey  in  fee  simple,  and  the  fee  is  afterwards  cast  upon 
him,  by  operation  of  law,  his  heirs  are  estopped  by  his  deed.  An 
estoppel  can  oidy  operate  against  a  party  who  has  conveyed  a 
precise  or  definite  legal  estate  or  riglit,  by  a  solemn  assurance 
which  he  will  not  be  permitted  to  deny  or  vary,  but  it  has  no 
operation  to  prevent  the  denial  of  an  equitable  transfer,  not  iden- 
tical with  the  legal  title,  which  it  is  relied  on  to  establish  or  pro- 
tect.* Where  one,  as  guardian,  conveys  lands  and  enters  into 
covenants  of  warranty  as  to  the  title,  in  his  deed,  he  is  estopped 
from  setting  up  a  personal  claim  to  the  same  land  under  his  own 
title." 

§  673.  The  estoppel  of  a  warranty  being  intended  for  the 
protection  of  the  parties,  should  be  so  moulded  as  not  to  defeat 
the  end  which  it  was  intended  to  secure,  and  whenever  there  is 
no  sufficient  cause  why  the  estoppel  should  not  operate,  it  will  be 
kept  in  abeyance."  The  effect  of  the  covenant  will  be  limited  in 
its  extent  b}'  the  premises  grunted,  and  with  which  it  may  run. 
As  where  a  grantor,  owning  one  undivided  sixth  part  of  a  tract 
of  land,  covenanted  against  the  claims  of  all  persons  to  the  estate, 
he  was  onl}^  estopped  as  to  his  portion,  and  not  to  any  shares 
which  he  afterwards  acquired.'  In  order  to  bar  a  party  by  his 
covenant  of  warratit}',  the  deed  must  not  only  be  a  good  and 
valid  one  in  form  and  mode  of  execution,  but  it  must  convey  no 
title  to  the  premises,  noi  pass  anythiiig  upon  which  the  warranty 
can  operate  ;  foi"  if  it  passes  a  title  or  interest  (that  is,  a  vested 

'French  v.    Spencer,  21  How.  228;  G35  ;    Blako    v.    Tucker,  12  Vt.   39; 

Gonld  V.  West,  33  Tex.  338.  College  v.  Cheney,  1  Vt.  336. 

'^  Gilmer    v.  Poindexter,    10    How.  ■*  Pendleton   v.    JRichey,  32  Pa.  St. 

257.  58;  Baxter  v.  Bradbury,  20   Me.  260; 

^  Heard    v.    Hall,    16    Pick.    457;  Somes  v.  Skinner,  3  Pick.  52,  Buck- 
Foster  v.  Young,  35  Iowa,  27;  Prouty  ingbam   v.    Hanua,    2  Ohio    St.  551; 
V.  Mather,  49  V..  415;  Cross  v.  Mar-  Calder  v.  Chapman,  52  Pa.  St.  359. 
tin,  46  Vt.  14;  Jarvis  v.  Aiken,  25  Vt.  '  Wight  v.  Shaw,  5  Cush.  56;  Trull 
•  V.  Eastman,  3  Met.  131. 


808  The  Law  of  Estoppel. 

interest),  the  covenant  does  not  operate  as  an  estoppel,  even 
though  it  cannot  operate  upon  the  interest  to  the  full  extent 
of  the  intention  of  parties.'  If  any  interest  passes,  however 
small  it  may  be,  it  works  no  estoppel."  The  covenant  need  not 
be  a  general  covenant  of  warranty,  but  will  always  work  an 
estoppel  to  the  extent  of  its  terms.  Thus  where  there  was  a 
covenant  of  warranty  against  a  particular  title,  which  the  gran- 
tor afterwards  acquired,  he  was  estopped  to  set  it  up.^  So  where 
one  covenants  against  incumbrances,  and  afterwards  buys  in  an 
outstanding  mortgage,  or  purchases  the  estate  under  a  sale  for 
foreclosure  of  a  mortgage  existing  thereon  prior  to  his  convey- 
ance, whatever  title  he  thereby  acquires  inures  to  the  benefit  of 
his  grantee.*  But  the  covenant,  to  have  this  eflFect,  must  be 
something  more  than  the  personal  covenant  of  him  who  makes 
it.  It  must  be  of  a  nature  to  run  with  the  land,  and  if  it  be 
siich  a  covenant,  it  will  attach  to  the  land  and  run  with  it  the 
instant  the  covenantor  acquires  the  title  which  he  has  undertaken 
to  convey  by  his  deed.* 

§  674.  Lord  Coke,  in  treating  of  release,  while  commenting 
upon  Littleton's  statement,  that  "  no  right  passeth  by  a  release 
but  the  right  which  the  releasor  hath  at  the  time  of  the  release 
made,"  speaks  of  a  release  accompanied  by  a  warranty,  and 
remarks:  "  The  warranty  may  rebut  and  bar  him  (the  warran- 
tor) and  his  heirs  of  a  future  right  which  was  not  in  him  at  the 
time."  Pie  puts  the  case  of  a  grandfather,  father,  and  son,  where 
the  father  disseizes  the  grandfather,  and  then  makes  a  feoffment 
in  fee,  and  the  grandfather  afterwards  dies;  the  father,  in  such  a 

'  Blanchard  V.  Brooks,  12  Pick.  47;  man,   9   Cowen,    2T1;   2   Prest.  Abst. 

Patterson  v.  Pease,  5  Ohio,  190;  Keich-  216. 

eval  V.  Triplett,  1  A.  K.  Marsli.  493;  »  Blake  v.  Tucker,  12  Vt.  30;   Trull 

Dougalv.  Fryer,  3Mo.  29;  Doe  v.  Sea-  v.  Eastman,  3   Met.  121;   Kimbal   v. 

ton,  C.  M.  &  11.  728;Xeavev.  Moss,  3  Blaisdell,  5   N.  H.  533;   Fitzhugli   v. 

K.  &  J.  220;  Weld  v.  Baxter.  11  Exchq.  Tyler,  12  B.  Mon.  559. 

816;   Sparrow   v.  Kingman,  1   N.  Y.  *  Brundrcd  v.  Walker,  12  N.  J.  E. 

242;  Langford  v.  Selmes,  3  Kay  &  J.  140. 

220;  Walton   v.  Waterhouse,  2  Wm.  *  Patterson   v.   Pease,  5  Ohio,  190; 

Saund.  826.  Wheelock  v.  Henshaw,  19  Pick.  341; 

'^  Lewis  V.    Baird,   3    McLean,    56;  Trull   v.  Eastman,  3  Md.  121;  Boyce 

4  Kent's   Com.  98;   Jackson   v.  Hoff-  v.  Longw^orlb,  11  Oliio,  235 ;  Jarvis  v. 

Aiken,  25  Vt.  635. 


Title  by  Estoppel.  809 

case,  might  not  enter  upon  his  feoffee  against  his  own  feoffment, 
though  the  son  might  upon  liis  death.  It  is  said  tliat  there  is  no 
English  authority  that  any  otiier  conveyance  than  a  feoffment, 
fine,' or  lease,  operates  by  way  of  estoppel  to  pass  an  after  acquired 
title,  "  and  so  note  a  diversity  between  a  release,  a  feoffment,  and 
a  warranty.  A  i-elease,  in  that  case,  is  void  ;  a  feoffment  is  good 
against  the  feoffor,  but  not  against  his  heir ;  a  warranty  is  good 
both  against  himself  and  his  heirs.'" 

§  675.  In  some  of  the  United  States,**  a  similar  rule  exists 
with  this  difference  :  in  England  a  release  is  secondary  evidence, 
and  derives  its  validity  and  effect  from  the  possession  of  the 
releasee,  while  in  this  country  it  is  primary  evidence  and  passes' 
the  releasor's  right  the  same  as  a  grant,  and  in  effect  it  operates 
as  a  conveyance  without  a  warranty.  If  made  with  a  warranty, 
the  releasor  is  estopped  to  claim  the  land.  A  covenant  for  quiet 
enjoyment  of  the  property  by  the  grantees,  estops  the  covenantor 
and  those  claiming  under  him,  from  interfering  with  such  enjoy- 
ment ;^  no  title  not  in  esse  will  pass  by  deed,  unless  the  deed  con- 
tains a  covenant  of  warranty  ;  in  which  case  it  operates  as  an 
estoppel  as  to  such  future  title."  No  person  can  recover  or 
defend  himself  against  his  own  grant  or  covenant ;  nor  can  any 
one  controvert  against  his  own  acts,  though  not  by  deed,  a  title 
which  he  has  by  his  deed  acknowledged.^  Thus  a  wife  by  a 
marriage  contract  constituted  to  herself  as  dowry  certain  prop- 
erty, and  her  father  became  a  party  to  the  contract  and  signed  it 
he  was  not  allowed  to  contest  her  title. 

A  grantor  is  estopped  to  deny  the  title  of  a  grantee,^  a  mort- 
gagor that  of  his  mortgagee,'  and  a  vendee  who  goes  into  posses- 

1  Coke,  Litt.  265,  a.  546. 

•^Dart  V.  Dart,  7  Conn.  250;  Trull  «  Currier  v.  Earl.  13  Me.  216;  Wil- 
V.  Eastman,  3  Met.  121;  Butler  v.  kir.son  v.  Scott,  17  Mass.  244;  Cox  v. 
Seward,  10  Allen,  46G;  Jackson  v.  Lacy,  3  Litt.  334;  Tewksbury  v.  Pro- 
Wright,  14  Johns.  193.  vizzo,  12   Cal.  26;   Beald   v.  Hall,  22 

=*  R.   R.   Co.  V.  Conklin,  29  N.  Y.  Ga.  431 ;  Wickersham  v.  Orr,  9  Iowa, 

572.  235;  Mclldowny  v.  Williams,  28  Pa. 

*  Blanchard  v.  Brooks,  12  Pick.  47;  St.  492;  McHinne  v.  Litllejolin,  2  N.  & 

Dart  V.  Dart,  7  Conn.  250;  Jackson  v.  Mc.  52;  Patrick  v.  Leach,  2  F.  R.  120; 

Wright,  14  Johns.  193;  Somes  v.  Skin-  Hall  v.  Ashby,  2  Mont.  489. 

ner,  3  Pick.  52.  '  Boone  v.  Armstrong,  87  Ind.  168; 

5  Cooper  V.  Galbraith,  3  W.  C.  R.  Thompson  v.  Justice,  88  N.  C.  269; 


810  The  Law  of  Estoppel. 

sion  cannot  dispute  the  title  of  his  vendor  while  he  remains  in 
possession.' 

§  676.  It  is  said  that  the  doctrine  of  estoppel  is  not  ordinarily 
applicable  to  States  or  the  United  States  as  it  is  to  individuals. 
That  policy  and  jnstice  require  this.  That  the  sovereign  or  sover- 
eign power  is  trustee  for  the  people  ;  it  acts  by  its  agents ;  the 
people  should  not  be  bound  by  any  statement  of  facts  made  by 
these  agents.  For  their  benefit  the  truth  may  always  be  shown, 
notwithstanding  any  former  statement  to  the  contrary."  This 
principle  may  be  applicable  in  cases  where  an  ofiScer  exceeds  his 
authority  or  acts  without  power.  But  as  a  general  principle 
applicable  in  all  cases  it  is  directly  opposed  to  the  great  weight 
of  authority  on  the  subject. 

§  677.  The  better  rule,  founded  upon  sound  reasoning,  is  that 
where  a  State  acts  in  her  sovereign  capacity  by  legislative  enact- 
ments or  resolutions,  the  doctrine  of  estoppel  applies.^  And  the 
rule  is  thus  stated  :  "  Resolute  good  faith  should  characterize 
the  conduct  of  States  in  their  dealings  with  individuals,  and 
there  is  no  reason  in  morals  or  law  that  will  exempt  them  from 
the  doctrine  of  estoppel."*     The  following  additional  cases  are 


Goodwin   v.    Keney,    49    Conn.    283;  5  Mason,  425;  State  v.  Brewer,  G4  Ala. 

Jones  V.  Reese,  65  Ala.  134.  287;    U.  S.    v.  Kirkpatrick,  9   Wheat. 

'  Ileermans  v.  Schraalz,  7  F.  R.  56G;  785;  State  v.  Graham,    23  La.    Ann. 

Quinn  v.  Quinn,  27  Wis.  168;   Miller  402;   not   estopped   to   plead   the  un- 

V.  Larson,  17   Wis.  644;   Jackson   v.  constitntionality  of  a  legislative  act. 

Walker,    7    Cow.    687;    Bramble    v.  *  Alexander   v.    State,    56  Ua.  486 

Beidler,  88   Ark.  200;   Lewis   v.  Bos-  Entield  v.  Permit,  5  N.  H.  285;  Sana 

kins,  28  Ark.  61;  Pintard  v.  Goodloe,  ders  v.   Hart,    57    Tex.   8;    State    v 

Hemp.  502;   Wilson   v.  Weatherby,  1  Brewer,  64  Ala.  287;  Magee  v.Hallctt 

N.  «&   Mc.  373;   Meadow    v.  Hopkins,  22  Ala.    699;  Commonwealth   v.    Bil 

Meigs,  81;  Willison  V.  Watkins,  3  Pet.  Ion,  3   Pick.    280;  Commonwealth  v 

43;  Farmer  v.  Pickens,  83   N.  C.  549;  Andre,  3  Pick.  224;  Carver  v.  Astor 

Trible  V.  Anderson,  63   Ga.  31;   Post,  4  Pet.  1;  Nieto  v.   Carpenter,  21   Cal 

Ch.   11  &,  13,   lor  additional  author!  455;  Penrose  v.  Gritlith,  4  Binn.  231 

ties.  Vidal  v.  Girard,  2  How.  127. 

•^  Taylor  v.  Sbufford,  4  Hawks,  116;  *  State   v.    Milk,  11  Fed.  Rep.  397 

Fannin   Co.    v.    Riddle,  51   Tex.  860;  Entield  v.  Permit,  5  N.  H.  2!S0;  Com. 

Candler  v.  Luudstord,  4  D.  &  B.  407;  v.  Andre,  8  Pick.  224;  Com.  v.  Pejeps- 

Wallace   v.    Maxwell,    10    Ired.    110:  cut  Proprs.,   10  Mass,  155;  People  v. 

btate  V.  Beeves,  86  JS'.  C.  588;    Farish  Soc.  for  Prop,  of  Gosp.,  2  Paine,  545; 

V.  Coon,  40  Cal.  50;  Johnson  v.  U.  8.,  State  v.  Bailey,  19  Ind.   452;    People 


Title  by  Estoppel.  811 

illustrations  of  the  application  of  the  doctrine  of  estoppel  to 
States  and  the  Federal  Government,' 

§  678.  A  State  may  be  estopped  by  its  own  grant  and  war- 
ranty, like  an  individual,  even  from  claiming  land  as  having 
escheated,  where  the  claim  is  made  on  the  ground  of  alienage. 
Thus,  where  the  commonwealth  granted  lands  to  an  alien,  who 
died  leaving  heirs,  citizens  and  residents  of  France  ;  to  an  inquest 
of  office  for  recovering  tbo  lands,  it  was  held,  that  the  deed  and 
warranty  of  the  commonwealth  was  a  bar,  and  that  it  could  not 
take  advantage  of  the  alienage  of  the  heirs.^ 

In  this  case  the  court  said  :  "  This  deed  must  operate  as  a 
rebutter,  as  it  would  if  an  individual  were  the  grantor,  and  with 
more  reason,  because  the  commonwealth  is  not  liable  to  an  action. 
The  commonwealth,  if  the  land  were  recovered,  would  feel  itself 
bound  to  repay  the  consideration  money,  with  interest.  This 
would  be  a  claim  which  could  not  be  resisted  without  degrading 
the  country.  But  there  is  no  need  of  resorting  to  this  remedy, 
for  the  deed  of  the  commonwealth  to  the  very  persons  now 
defending  as  heirs  to  Andre,  to  whom  and  to  whose  heirs  the 
grant  was  made,  is,  we  think,  an  estoppel  against  setting  up  the 
alienage  of  those  persons  as  the  ground  of  recovery.'" 

So  in  Commonwealth  v.  Pejepscut  Proprietors,  it  was  held, 
where  the  Legislature,  by  a  public  resolve,  had  declared  that  a 
certain  monument  was,  and  was  considered,  as  the  monument 
mentioned  and  intended  in  an  ancient  Indian  deed,  under  which 
a  title  was  derived  to  certain  proprietors,  the  commonwealth  was 
estopped  frbm  afterwards  showing  that  such  monument  was  not 
the  one  intended  in  such  deed.* 

V.  Mivynard,    15  Mich.    463;  Calm  v.  Johnson,  33  Gratt.  294;  Mott  v.  Smith, 

Barnes,  5  Fed.  Rep.  326.  16  Cal.   533;  State  v.   R.  R.   Co.,  34 

'  Magee    v.    Hallett,    22  Ala.    699;  La.  An.   954;  Atty.  Genl.  v.  Boston, 

Menard  v.  Massey,  8  How'.  293;  Bran-  12   Gray,    553;  Penrose  v.  GrifBtb,  4 

son   V.  Wirth,  17    \Yall.  32;  State  v.  Binn.  231;  Carver  v.  Astor,  4  Pet.  1; 

Taylor,  28  La.  An.  462;  Nielo  v.  Car-  People  v.   Van   Rensselaer,  9  N.  Y. 

penter,    21    Cal.   455,    &   7   Cal.    527;  291;  Reg.  v.  Deline,  10  Md.  200. 
State  V.  Ober,  34  La.  An.  359 ;  Clark  v.  *  Commonwealth  v.  Andre,  3  Pick. 

Lockwood,  21   Cal.    220;    Curran    v.  224. 

State,   15  How.  308;  Mahoney  v.  Van         ^  Commonwealth  v.  Andre,  3  Pick. 

Winkle,21  Cal.  552 ;  Commonwealth  v.  224. 

♦  10  Mass.  155. 


812  The  Law  of  Estoppel. 

And  in  People  v.  Society  for  Propa<;^ation  of  the  Gospel,  the 
court  held  that  the  doctrine  of  estoppel  applies  to  a  State  as  Avell 
as  to  private  persons.  Where,  therefore,  a  State,  by  an  act  of 
its  Legislature,  granted  to  a  town  forever  the  use  of  certain  lands 
for  the  benefit  of  the  town,  it  was  held,  that  the  State  having 
parted  with  all  the  interest  it  had  in  the  lands,  was  estopped 
from  claiming  a  forfeiture  by  reason  of  a  condition  broken  before 
the  grant  was  made.' 

And  it  was  held  in  State  v.  Bailey,  that  where  the  articles  of 
association  of  a  railroad  company  arc  defective,  in  not  specify- 
ing with  sufficient  certainty  the  terminus  of  the  road,  but  they 
are  properly  filed  in  the  office  of  the  Secretary  of  State,  such 
filing  is  notice  to  the  State  of  such  defect,  and  the  State  neglects 
for  eight  years  to  take  advantage  thereof,  by  quo  warranto,  or 
otherwise,  the  right  thereafter  to  do  so  must  be  considered  lost." 

§  679.  In  the  case  of  Calm  v.  Barnes,  the  court  says :  "  It 
also  appears  to  me  that  the  State  is  estopped  to  say,  as  against  its 
grantee,  this  plaintiff,  that  this  is  not  wagon  road  land.  The 
State  granted  this  land  to  plaintiff's  vendor  as  wagon  road  land, 
and  allowed  it  to  be  selected  and  approved  as  such  by  the  secre- 
tary, without  objection,  long  before  it  sold  it  to  the  defendant  as 
swamp  land.  .  .  .  The  State  was  the  grantee  in  both  these 
grants.  It  accepted  the  premises  as  part  of  the  wagon  road 
grant,  or  allowed  its  grantees  to  do  so,  without  objection  on  its 
part.  If,  however,  the  land  is  swamp,  in  fact,  the  State  must  have 
neglected  to  furnish  the  department  with  the  proper  evidence 
thereof.  It  may  have  acted  thus  because  it  preferred  that  the 
land  should  pass  under  the  wagon  road  grant,  and  thereby  be 
applied  in  aid  of  a  useful  public  enterprise.  For  years  after  it 
was  made  this  swamp  land  grant  was  not  regarded  with  favor  in 
this  State,  nor  was  it  thought  that  there  was  any  quantity  of 
land  to  which  it  was  properly  applicable.  Tt  is  a  matter  of  his- 
tory that  up  to  1870  the  State  refused  to  take  any  steps  to  secure 
land  under  it,  because,  for  one  reason,  it  preferred  to  make  its 
selections  under  the  school-land  acts,  even  if  damp  enough  to  be 
called  swamp,  as  in  most  cases  the  dampness  was  a  recommenda- 

'  2  Paine  C.  C.  545.  ="  19  Ind.  453. 


Title  by  Estoppel.  813 

tion  rather  than  otherwise.  In  the  meantime  this  land  was 
selected  and  approved  as  Avagon  road  land,  with  the  acquiescence, 
if  not  the  concurrence,  of  the  State,  for  the  benetit  of  its  grantee, 
and  therefore  it  is  now  estopped  to  deny  directly  that  it  is  included 
in  such  giant,  or  indirectly,  by  alleging  that  it  is  swamp  laud. 

"  A  paper  was  also  offered  in  evidence  by  the  plaintiff,  executed 
by  the  governor  of  the  State,  under  the  great  seal  thereof,  on 
October  2,  1871,  reciting  the  grant  to  the  State,  and  the  assign- 
ment thereof  to  the  wagon  road  company,  and  certifying  that  the 
road  had  been  duly  constructed  and  accepted,  and  that  '  the  lands 
along  the  line  of  said  road,  to  the  extent  of  860,000  acres,  have 
under  gaid  donation  and  grant  passed  to  and  become  the  absolute 
property  of  said  company,  as  a  patent  or  grant  from  the  State, 
but  was  not  received  as  such,  because  it  did  not  purport  to  be  a 
grant  or  patent,  but  only  a  certificate,  that  in  the  opinion  of  the 
executive,  certain  lands,  including  the  premises  in  controversy, 
had  become  vested  in  the  wagon  road  company  by  virtue  of  the 
congressional  and  legislative  grants,  and  the  subsequent  construc- 
tion of  the  road,  and  because  it  does  not  appear  that  the  governor 
Avub  authorized  to  issue  a  patent  for  the  premises  under  any  cir- 
cunistances.' 

"My  conclusion  is:'  1st.  That  the  patent  is  conclusive  evi- 
dence in  this  action  that  the  premises  are  not  swamp,  and  there- 
fore the  oral  evidence  to  that  effect  cannot  be  considered  ;  and 
2nd,  that  the  State  is  estopped  to  deny  that  the  premises  are 
indnded  in  the  wagon  road  grant,  and  therefore  its  tenant,  the 
defendant,  is  also." 

When  a  deed  is  executed,  or  a  contract  made  on  behalf  of  a 
State,  by  a  public  officei-,  duly  authorized,  and  this  fact  appears 
upon  the  face  of  the  instrument,  it  is  the  deed  or  contract  of  the 
State,  notwithstanding  that  the  officer  may  be  described  as  one 
of  the  paities,  and  may  have  affixed  his  individual  name  and 
seal.  In  such  cases  the  State  alone  is  bound  by  the  deed  or  con- 
tract, and  can  alone  claim  its  benetits.*  And  in  Louisiana  the 
after  acquired  title  of  the  State  was  held  to  pass  to  the  grantee 


'5F.  R  B34.  Hodgson  v.  Dexter,  1   Crancb,  345; 

"Sheets  v.    Selden,   2    Wall.    177;      Siincbtield  v.  Little,  1  Me.  231;   State 

V.  JVIcCiiuley,  15  Cal.  456. 


814  The  Law  of  Estoppel. 

of  the  State.'  In  the  case  of  Kansom  v.  Wliite,«  Mr.  Justice 
Bradley  in  delivering  the  opinion  of  the  court,  says,  "  if  the 
grant  was  in  fact  for  the  north-east  quarter,  the  government 
could  not  have  reclaimed  that  quarter  against  its  own  patent." 

§  G80.  A  covenant  of  warranty  is  a  perpetually  operating 
covenant.'  AVhen  made  in  a  deed  by  a  grantor,  has  the  same 
effect  as  if  a  particular  recital  or  averment  is  inserted  in  his  deed. 
Its  effect  as  an  estoppel  is  similar  to  that  of  a  recital,  upon  this 
principle  of  conclusiveness  :  A  grantor  who  has  deliberately  made 
certain  representations  and  covenants  of  warranty  in  his  deed,  is 
not  allowed  to  controvert  tlie  fact  that  he  owned  an  interest  in 
the  estate  which  by  his  deed  he  granted,  in  order  to  set  up  a 
claim  hostile  or  adverse  to  the  title  of  his  grantee,  where  his 
grant  is  of  land  or  an  estate,  and  not  a  quit-claim  deed  or  a  mere 
release  of  his  interest  or  title  to  the  same.  A  man  is  never 
allowed  to  claim  in  opposition  to  his  deed,  b}'  averring  that  he 
had  no  estate  in  the  premises.  So  where  the  plaintiff's  ancestor 
conveyed  the  premises  to  the  grantor  of  the  tenant,  the  ground 
of  the  plaintiff's  claim  was,  that  when  tlieir  ancestor  conveyed  the 
land,  he  had  no  title  to  it,  but  acquired  one  subsequently  in  his 
lifetime,  which  had  descendtid  to  them.  Tilghman,  C.  J.,  says  : 
"  Can  his  heirs  recover  against  his  grantees?  In  such  case  they 
would  be  estopped  by  their  father's  deed  from  denying  his  title, 
and  if  there  were  occasion  for  further  assurance,  equity  would 
compel  them  to  make  it."'  "  So  in  equity,  a  grantor  conveying 
lands  for  which  he  has  no  title  at  the  time,  shall  be  considered 
trustee  for  the  grantor,  in  case,  at  any  time  afterwards,  he  should 
acquire  title."  "  Chancery  would  compel  them  (the  plaintiffs)  to 
convey  to  the  defendants."* 

§  681.  Where  one  conveys  land  with  warranty,  before  he 
acquires  title,  he  cannot  bring  ejectment  upon  his  subsequently 

1  Scuddy  V.    Scbaffer,   10  La.    An.      Somes  v.  Skinner,  3  Pick.  53. 

133.  *  McWilliams  v.  Nisely,  2   S.  &  R. 

2  17  Wall.  40.  507;  Gould  v.    West,    32    Tex.    338; 
3Terrett  v.    Taylor,  9   Cranch,  43;      Reeder    v.     Craig,    3    McCord,    411; 

Jackson  v.  Matsdorf,  11  Johns.  97;  French  v.  Spencer,  21  How.  228; 
Jackson  v.  Wright,  14  Johns.  183;  AYashabaugh  v.  Entriken,  34  Pa.  St. 
McWilliams  v.  Nisly,  2  S.  &  R.  513;     74. 


Title  by  Estoppel.  815 

acquired  title,  against  the  grantee  or  his  assigns,'  It  estops  the 
grantor  and  his  privies  from  any  future  claim  of  title,  and  passes 
an  interest  and  a  title  the  moment  any  estate  in  the  land  comes  to 
the  grantor.^  The  estoppel  applies  where  the  property  is  devised 
to  the  former  grantor."  A  grantor  igi  a  deed  conveying  property 
in  fraud  of  creditors  is  estopped,  as  well  as  his  administrator,  to 
avoid  the  deed.*  The  estoppel  includes  the  heirs  of  the  grantor. 
A  grantor  in  fee  witli  covenants  of  warranty,  can  not  deny  that 
the  heirs  of  the  grantee  are  seized  in  fee.  A  title  subsequently 
acquired  by  him  inures  to  their  benefit,  unless,  perhaps,  with  this 
exception  :  when  an  after  acquired  title  is  obtained  through  a 
judicial  sale  for  taxes,  or  otherwise.  This  applies  to  a  sale  made 
by  an  administrator,  even  though  under  many  statutes  the  estate 
be  held  over  in  fact  for  a  tenu  of  years  only." 

§  G82.  The  words  "  grant,  bargain,  and  sell,'^  conveying  the 
fee,  amount  to  an  express  warranty,  and  pass  an  after  acquired 
estate."  The  words  "  grant,  bargain  and  sell,"  conveying  the 
fee  subject  to  divestiture  on  the  performance  of  the  condition 
expressed,  passed  all  G.'s  title  to  the  property ;  and  G.  was 
estopped  from  asserting  against  the  mortgagee  the  title  acquii'ed 
from  E..'  So  the  words  "  give,  grant  and  release,"  were  con- 
strued as  amounting  to  an  estoppel,"  but  the  words  "  bargain, 
sell,  release,  quit-claim  and  convey,"  are  words  of  release  and 
quit-claim  merely  without  operating  as  an  estoppel.*  So  a  subse- 
quent title  inures  under  a  covenant  for  further  assurance  in  a 
quit-claim  deed,  as  well  as  under  a  covenant  of  warranty,'"  and 

'  Lindsey  v.  Ramsey.  22  Ga.    627;  Dewitt,  3  N.  Y.  276. 

Drake  v.  Root,  2   Cal.  685;  Massie  v.  "  Perry  v.  Calvert,  23  Mo.  361;  Beale 

Sebastian,  4  Bibb.  386.  v.    Hall,    22    Ga.   431;   Furguson    v. 

•^  Moore  v.    Rake,    26  N.  J.  L.  574;  Coleman,  5  Ileisk.  %78. 

Philly  V.    Sanders,    11    Ohio   S.  490;  '^  .Jones  v.  King,  25  ill.  383. 

Wiesnerv.  Zaun,  39  Wis.  188.  «  De  Wolf   v.  llaycleu.  24  111.  525; 

=*  Washabaugh  V.   Entriken,  34  Pa.  Blakcslee   v.    ins.    Co..    57  Ala.  205; 

St.  74;  McKiunie  v.  Littlejolin,  2  N.  Gibson  v.  Choteau,  39  Mo.  536. 

&M.  52;  Hayes  v.  Tabor,   41   N.    H.  ■>  I3lackeslee  v.  Ins.  Co., 57  Ala.  205. 

531;  Robertson   v.  Wilson,  38  N.  II.  ^  Fairiey  v.  Fnirley,  34  Miss.  18. 

38;  Vreeland  v.  Blauvelt,  23  N.  J.  E.  «  G.bsoa  v.  Cboieau,  39  Mo.  536. 

43;  Teflfts   v.   Munsou,  63   Barb.    31;  '"Bennett   v.    Walker,  23    111.    97: 

Gritlin   v.   Henderson,  70  Pa.    St.  25;  Welch  v.    Button,  79  111.  405;   Chaii- 

Read  v.   Fogg,  60  Me.  479;  Allen  v.  win  v.  Wagner,  18  Mo.  531;  Smith  v. 


810  The  Law  of  Estoppel. 

where  a  grantor  with  full  covenants  of  warranty  against  incum- 
brances, pays  otf  or  buys  in  a  prior  mortgage,  or  buys  the  land  at 
a  foreclosure  sale  under  it,  the  right  and  title  he  thus  acquires 
inures  to  the  benefit  of  his  warrantee.'  Lineal  warranty  estops 
the  warrantor  and  his  heirs  from  ever  afterwards  claiming  title  to 
the  lands.  To  any  such  claim  the  warranty  is  a  perfect  defense 
or  rebutter.''  But  unless  the  deed  contains  covenants  of  general 
warranty,  it  cannot  operate  as  an  estoppel  to  pass  an  after  acquired 
estate.  So,  where  an  instrument  under  seal  contained  the  names 
of  the  parties,  a  description  of  land,  and  a  covenant  of  warranty 
of  the  land  described,  against  all  persons  claiming  under  the 
covenantor,  but  no  words  of  grant,  the  covenant  was  held  to 
operate  as  an  esto])pel  by  way  of  rebutter  to  prevent  circuity  of 
action,  as  between  parties  and  privies.' 

§  6S3.  The  'deed  of  an  attorney  estops  him  and  all  persons 
claiming  under  him."  It  is  said  that  the  fact  alone,  that  one  as 
attorney  in  fact  for  another,  executed  to  a  third  person  a  deed  of 
land,  does  not  constitute  an  estoppel  so  as  to  prevent  him  from 
afterwards  setting  up  a  title  to  the  property  acquii'ed  by  him  from 
tiie  person  for  whom  he  acted  as  attorney  in  fact,  before  he  exe- 
cnted  the  deed.^  An  alienation  of  the  interest  of  one  joint  tenant, 
either  by  deed  or  other  legal  process,  is  not  void  for  all  purposes, 
but  operates  against  him  and  all -claiming  under  him  by  estoppel, 
whether  he  had  notice  or  not,  and  can  only  be  avoided  by  the 
co-tenant  who  is  injured  or  those  claiming  under  him.  So  a  deed 
of  conveyance,  release,  and  partition,  between  all  the  claimants  of 
a  certain  tract,  with  a  proviso  that  it  is  to  take  effect  when,  and 
only  when  the  commissioners  thereby  appointed  to  make  parti- 
tion shall  have  recorded  their  report,  estops  a  party  to  it  to  deny 
that  he  had  tit^e,  and  to  dispute  the  title,  the  other  parties  derive 
under  it.     He  can  not  aftei-wards  set  up  that  he  only  released  a 

Baker.   1  Y.  &  C.   223;  Robertson   v.  v.  Cornell,  3   John.  Cas.  174;  Kessel- 

Wilson,  38  N.  H.  48;  Jones  v.    King.  man  v.  Ord,  4  Dull.  168. 

25  111.  383;  Mills  v.  Catlin,  22  Vt.  98;  ^  jjiq^.,,  y    Manter,  21  N.   H.  528. 

Steiuer  v.  Baughmau,  12  Pa.  St.  106.  *  Lee  v.  Getty,  26   111.   76;  Gibbons 

'  Brundred  v.  Walker,  12  N.  J.  E.  v.  Hoag,  95  111.  45. 

140.  '  ymith    V.    Penny,    44    Cal.    161; 

«  Smith  V.  Smith,  14  Gray,  532;  Den  Wrightv.  DeGroff,  14  Mich.  164. 


Title  by  Estoppel,  817 

certain  title  to  the  land,  and  that  he  held  at  the  time,  and  now 
holds  by  a  paramount  title.' 

§  6S4:.  In  England,  while  a  contingent  remainder  will  not  pass 
bv  legal  conveyance,  yet  it  may  pass  by  estoppel,  but  a  feme 
covert  not  being  bound  by  an  estoppel,  cannot  convey  such 
remainder,"  by  fine  or  recovery,  so  as  to  bind  the  party  when  the 
contingency  happens,  after  the  death  of  the  original  remainder- 
man, and  such  remainder  is  assignable  in  equity/  A  fine  by  a 
contingent  remainderman  passes  nothing  but  operates  by  esto])pel, 
and  has  an  ulterior  operation  when  the  contingency  happens,  the 
estate,  which  then  becomes  vested,  feeds  the  estoppel  and  the  fine 
operates  upon  it  as  though  it  had  been  vested  when  the  fine  was 
levied/  A  vested  remainder,  lying  in  grant,  passes  by  deed  with- 
out livery  ;  but  a  contingent  remainder  is  a  mere  right,  and  can- 
not be  transferred  before  the  contingency  happens,  otherwise 
than  by  way  of  estoppel,  and  therefore  cannot  be  conveyed  by  a 
married  woman.  Any  conveyance  by  matter  of  record  or  by 
deed  indented,  will  work  an  estoppel.  So  if  there  be  an  estate  to 
A.  and  B.,  and  to  the  survivor  in  fee,  a  couvej'ance  operating  by 
way  of  an  estoppel,  will  bind  the  contingent  remainder  in  fee  in 
the  survivor.  A  lease  and  release,  if  the  latter  be  by  deed 
indented,  will  work  an  estoppel.  The  estate  for  life  is  only  a 
tangible  interest,  and  the  other  is  a  mere  possibility,  and  estoppels 
exist  where  no  interest  passes  from  the  party.  One  holding  a 
vested  interest  and  a  contingent  interest,  conveying  by  deed  with 
warranty  his  right,  title  and  interest  therein,  passes  his  vested 
interest  only  by  the  deed,  and  is  not  estopped  thereby  to  claim 
his  contingent  interest  when  it  becomes  vested.^ 

§  685.  Where  an  estoppel  works  on  the  interest  of  land,  it 
passes  with  the  land.  An  estoppel  is  not  a  mere  conclusion, 
but  may  pass  an  interest  and  constitute  a  title  from  the  moment 
the  grantor  acquires  one,  and  all  who  come  in  the  post  are  bound 
by  the  estoppel ;  though  claiming  under  another  title.  The 
grantee's  right  is  not  limited   to  a  claim    by   the  grantor  or  his 

'  Tewksbury  v.  Piovizzo,  13  Cal.20.  "  Doe  v.  Martin,  8  Barn.  &  C.  497; 

«  Deu  V.  Demarest,  1  N.  J.  511.  Vieelaud  v.  Blauvelt,  23  N.  J.  E.  483; 

^2  Cruise,   393;    Doe  v.  Martin,    8  Barwick  v.  Wood,  3  Jones  L.  306. 

Barn.  &  C.  516.  »  Blanchard.  v.  Brooks,  14  Pick.  47. 
Vol.  I.— 53 


818  The  Law  of  Estoppel. 

representatives;  he  may  defend  against  trespassers  or  disseizors. 
Though  a  warranty  estop  the  lieir  and  liis  issue  it  docs  not  estop 
the  purchaser  under  a  judgment  against  the  heirs,  recovered 
during  the  life  of  the  ancestor  and  before  the  deed  from  wliicli 
the  estoppel  would  arise.'  Where  the  husband  conveys  the  wife's 
estate  and  afterwards  inhei'its  it  from  her,  he  is  estopped.*  So 
an  heir  and  residuary  devisee,  who  has  given  bond  as  such  devisee, 
to  pay  the  debts  of  his  testator,  is'  estopped  to  set  up  a  subse- 
quent title  as  heir  of  the  testator's  wife,  against  a  warranty 
deed  made  by  the  testator,  although  all  right  of  action  on  the 
covenants  in  the  deed  is  barred  by  the  statute  of  limitations.' 
So  where  A.  conveyed  with  warranty  to  B.  land  claimed  by 
his  father,  and  after  the  father's  death  purchased  land  of  the 
heirs,  one  of  whom  was  the  wife  of  B.  and  released  wnth  her 
liusband  all  her  right,  while  B.  could  not  claim  against  his  own 
deed  the  share  of  his  wife,  all  the  residue  inured  to  him  by 
estoppel.* 

§  686.  The  rule  that  one  having  no  title,  but  conveying  with 
full  covenants  of  warranty,  and  subsequently  acquiring  title,  is 
estopped  as  against  his  grantee,  to  deny  that  he  had  a  good  title 
.at  the  time  of  his  grant,  and  that  the  new  title  inures  to  the 
grantee,  applies  in  a  snit  upon  the  covenant  for  seizin,  where  the 
covenantee  is  in  possession  ;  but  where  the  grantor  purchases  the 
paramount  title  after  the  eviction  of  his  grantee,  such  title  does 
not  inure  to  the  grantee  by  way  of  estoppel,  without  his  consent, 
so  as  to  defend  his  right  to  sue  on  the  covenants  of  warranty,  and 
to  recover  the  consideration,  neither  can  the  grantor  avail  himself 
of  it  in  mitigation  of  damages.*  But  if,  before  the  covenantor 
acquires  a  title,  the  covenantee  sue  for  a  breach  of  the  covenant 
of  seizin  he  cannot  defeat  that  action  by  purchasing  in  the  title 
and  tendering  it  to  liis  covenantee,  if  the  latter  refuse  to  accept 
it.^  But  if  the  title  comes  to  the  covenantor  i-n  the  capacity  of 
trustee,  and  not  in  his  own  right,  it  would  not  inure  to  the  prior 


'  Jackson    v.    Bradford,   4    Wend.  ^  Cole  v.  Raymond,  4  Gni^',  217. 

619.  *  Kimball  v.  ScbolT,  40  N.  H.  190. 

""  Clark   V.    Slaughter,  34  Miss.  05;  ^  Burton    v.     Reeds,    20     Ind.    87; 

Simmons    v.    Logan,    1     Ilarr.    110;  Meyers  v.  Croft,  13  Wall.  291. 

Patrick  v.  Chenault,  6  B.  Mon.  315.  s  Tucker  v.  Clarke,  2  Sandf.  Cb.  9ft. 


Title  by  Estoppel.  819 

covenantee.  The  estoppel  would  not  apply  in  such  a  case.^  The 
covenantee  may  estop  himself  from  settin^^  up  the  covenant  of 
his  grantor,  by  way  of  claiming  the  estate.  If  the  purchaser 
under  a  deed  with  general  covenants  of  warranty,  be  evicted  by 
a  better  title,  it  is  not  in  the  grantor's  power  afterwards  to 
acquire  a  title  to  the  premises,  and  compel  the  grantee  to  accept 
the  same  against  his  will  ;  but  if  instead  of  claiming  the  land, 
the  purchaser  sues  upon  his  covenants,  and  recovers  damages  for 
a  breach  thereof,  he  is  estopped  thereby  from  claiming  the  land 
by  estoppel,  though  his  grantor  and  covenantor  should  have 
acquired  it.''  Nor  will  such  covenant  prevent  the  grantor  from 
subsequently  acquiring  a  title  to  the  granted  premises,  and 
availing  himself  of  it  against  his  own  grantee,  if  the  title 
conveyed  by  such  grant  was,  at  the  time  a  good  one.  Thus, 
where  the  grantor  disseized  his  own  grantee,  and  held  adverse 
possession  for  twenty  years,  he  was  not  estopped  by  his  former 
deed  and  covenant,  to  claim  title  to  the  premises  by  such 
disseizin.^ 

§  687.  If  a  grantee  after  eviction  by  the  holder  of  a  para- 
mount title,  recovers  damages  for  the  breach  of  the  covenants  of 
seizin  on  the  ground  that  the  grantor  had  no  title  whatever,  the 
operation  of  it  must  be  to  estop  the  grantee  from  setting  up  the 
deed  afterwards  as  a  conveyance  of  the  land,  against  the  grantor. 
The  grantor  may  again  enter  if  he  chooses  as  against  the  grantee. 
A  recovery  in  trespass  or  trover,  vests  the  property  in  the  party 
against  whom  the  damages  are  assessed.  And  there  is  nothing  in 
the  nature  of  the  feudal  investiture,  or  in  the  principles  which 
regulate  the  title  to  land  that  requires  a  different  rule  in  relation 
to  real  estate."  The  record  of  the  recovery  will  furnish  as  good 
an  estoppel  as  that  which  arises  from  a  disclaimer,^  when  land 

'  Burchard  v.    Hubbard,  11    Ohio,  Smith  v.  Monies,  11  Tex.  24;  Stearns 

316;   Kelly   v.   Jeaness,    50   Me.   455;  v.  Hendersas,  9  Cash.  503;  Parker  v. 

Sinclair    v.     Jackson,    8     Cow.    587;  Proprietors,  3  Met.  102. 

Jackson    v.    Hoffman,    9    Cow.    273;  *  Burton  v.  Reeds,  20  Ind.  87. 

Jackson  v.  Mills,  13  Johns.  463.  5  Parker  v.    Brown,  15  K  H.  176; 

=  Blauchard  v.  Ellis,  1    Gray.  195;  Hamilton  v.  Elliot,  4  N.  H.  182;  Por- 

Baxter  v.  Bradbury,  20  Me.  2G0;  Porter  ter   v.    Hill,    9   Mass.  36;    Slinson  v. 

r.  Hill,  9  Mass.  34.  Sumner,  9  Mass.  143;  Morris  v.  Phelps, 

» Tilton  V.    Emery,    17  N.  H.  538;  5  Johns.    49;    Fitch  v.  Baldwin,    17 


820  The  Laav  of  Estoppel. 

conveyed  by  A.  to  B.  with  general  warranty,  and  subsequently 
granted  by  B,  to  C.  with  warranty,  but  subject  to  incumbrances, 
was  sold  under  a  judgment  against  A.,  and  bought  in  by  him,  it 
was  held  that  the  title  thus  acquired  might  pass  to  B.  but  that  C. 
could  claim  nothing  under  it,  who  had  taken  subject  to  the  first 
judgment  on  which  execution  was  issued,'  where  the  deed  does 
not,  on  its  face,  purport  to  convey  an  indefeasible  estate,  but 
only  the  "  right,  title  and  interest  "  of  the  grantor,  even  although 
deed  may  contain  a  general  covenant  of  warranty  where  that 
covenant  is  held  to  be  limited  and  I'cstrained  by  the  estate 
conveyed  and  not  to  warrant  a  perfect  title,  the  estoppel 
does  not  apply;  while  a  warranty  is  invested  with  the  highest 
functions  of  an  estoppel  in  passing,  by  mere  operation  of  law, 
an  after  acquired  estate,  it  loses  that  attribute  when  it  is 
apparent  that  the  grantor  intended  to  convey  no  greater 
estate  than  he  was  possessed  of.  "  Thus  a  devisee,  being 
entitled  to  a  vested  remainder  in  one  moiety,  and  a  contingent 
remainder  in  another  moiety  of  certain  real  estate  held  in  common 
with  other  devisees,  conveyed  all  his  'right,  title,  and  intei-est  in 
and  to  the  undivided  real  estate  devised,'  with  unlimited 
covenants  of  warranty  and  for  quiet  enjoyment,  he  was  held  to 
have  conveyed  only  his  vested  interest,  and  the  warranty  being 
only  co-extensive  with  the  grant,  he  was  not  thereby  estopped  to 
claim  the  contingent  interest  when  it  became  vested  in  interest 
and  possession  by  the  happening  of  the  contingency."* 

§  688.  Where  a  deed  conveys  title,  a  warranty  can  never 
operate  as  an  estoppel.'  A  vendee  holds  adversely  to  his  vendor, 
and  is  not  estopped  from  denying  his  vendor's  title."  There  is 
no  general  or  inflexible  principle  which  estops  the  gi-antee  fron) 
showing  that  the  grantor  had  no  title,  or  none  which  was  ca]);tble 
of  being  passed  by  the  grant.  The  mere  acceptance  of  a  con- 
veyance does  not  prevent  him  from  showing  want  of  estate  in 
the  grantor  of  the   land  conveyed.^     By   accepting  a  deed  the 

Johns.  161;  Blanchaid  V.  Ellis,  1  Gray,  ^  L^wis    v.    Baird,   3    McLean,  56; 

195.  Jackson  v.  Hoffman,  9  Cow.  271. 

'  Skinner  v.  Starnera,  24  P.  St.  125.  "  Cutter   v.    Waddingham,  33  Mo. 

="  Blauchard  v.  Brooks,  12  Pick.  47;  269. 

Wyun  V.  Harman,  5  Gratt.  157;  White  ^  Sparrow  v.  Kingman,  1  N.  Y.  242; 

V.  Brocaw,  14  Ohio  St.  339.  Averill  v.  Wilson,  4  Barb.  180;  Blair 


Title  by  Estoppel.  821 

grantee  is  estopped  to  deny  the  effect  and  provisions  of  such 
deed.'  A  person  is  not  allowed  to  accept  a  deed  with  covenants 
of  seizin,  and  then  set  up  breach  of  covenant  on  the  ground  that 
the  grantee  is  himself  seized  at  the  time  of  the  making  of  the 
deed.^  Where  one  who  owns  land  adjacent  to  that  of  another, 
purchases  of  the  latter  a  parcel  bounded  by  his  own,  and  the  line 
is  definitely  described  in  the  deed,  he  and  his  successors  are 
estopped  to  claim  that  he  was  at  the  time  of  purchase,  holding 
adversely  any  part  of  the  land  beyond  the  boundary  line  therein 
described.^  A  grantor  may  disseize  his  grantee,  and  if  he  does, 
he  is  not  estopped  by  his  deed,  from  claiming  title  against  his 
grantee,  by  adverse  possession,  as  such  disseisor  to  the  land  which 
he  had  formerly  conveyed."  The  court  of  Massachusetts,  while 
maintaining  that  if  one  grants  his  right,  title,  claim,  and  demand 
to  an  estate  with  covenants  of  warranty  against  all  persons  claim- 
ing by  or  under  him,  the  grantor  is  not  estopped  to  set  up  a  newly 
acquired  title  against  his  own  grantor,  and  decide  that  a  grantor 
of  an  estate  is  estopped  by  his  conveyance  to  deny  that  he  had 
any  title  in  the  land  at  the  time  of  the  conveyance,  and  whatever 
interest  he  had,  passed  to  the  grantee  by  his  deed.'  Where  a 
person  assents  to  an  act,  and  derives  and  enjoys  a  title  under  it, 
it  shall  not  lie  in  liis  mouth  to  impeach  it.^ 

§  689.  Where  in  a  deed  with  covenants  of  w^arranty,  there  is 
a  recital  of  an  outstanding  mortgage,  the  recital  qualifies  the 
covenant.'  So  where  the  grant  is  in  the  form  of  a  release  or  quit- 
claim of  all  the  grantor's  right,  title  and  interest,  with  covenants 
of  warranty  against  all  persons  claiming  by  or  under  him,  while 

V.    Smith,    16    Mo.    275;    Croxall    v.  Beebee  v.  Swartout,  8  111.  162. 

Sherrerd,  5  Wall.  287.  ^  Hodges  v.  Eddy,  38  Vt.  349;  Root 

'  Slicp.  Touch.    53  ;    Comstock    v.  v.  Crook,  7  Pa.  St.  378. 

Smith,  13  Pick.  116.  *  Franklin  v.  Borland,  28  Cal.  180; 

^  Fitch  V.  Baldwin,  17  Johns.   IGl;  Hines  v.  Robinson,  57 Me.  331;  Trapp 

Blight  V.    Rochester,    7  AVheat.  543;  v.  Trapp,  57  Me.  268. 

Furness  V.  Williams,  11  111.  229;  Ward  *  Comstock  v.  Smith,  13  Pick.  116; 

V.  Mcintosh,  12  Ohio  St.  237;   Springs  S.  P.,  Bruce  v.  Lake,  9  Kas.  201. 

stein  V.  Schermerhorn,  12  Johns.  R.  «  Rex  v.  Stacy,  1  T.  R.  4 ;  Ford  v. 

363;  Rennick  v.  Bank,  8  Ohio,  530;  Flint,  40  Vt.  382;  Clee  v.  Steeman,  21 

Dock  Co.  V.   Leavitt,   54  N.    Y.   35;  Mich.  297. 

Breeding  v.  Stamper,  18  B.  Mon.  175;  '  Jackson  v.   Hoffman,   9    Cowen, 

271 


822  Thk  Law  of  Estoppel. 

such  a  grant  as  this  estops  tlie  grantor  from  claiming  that  any 
title  existed  in  him  at  the  time  of  making  his  deed,  it  is  no  estop- 
pel as  to  any  after  acquired    title.'     Where   the   covenant  for 
seizin  is  satisfied  by  the  transfer  to  the  purchaser,  of  an  actual 
though  a  tortious  seizin  (as  is  the  case  in  many  of  the  New  Eng- 
land States),  no  estoppel  is  created  by  that  covenant.^  Where  the 
covenant  of  warranty  is  limited  to  the  acts  of  the  grantor,  and 
the  purchaser  would  not  be  entitled  to  sustain  an  action  upon  it, 
by  reason  of  the  defect  of  title  not  being  of  the  grantor's  own 
creation,  and  therefore  not  coming  within  the  scope  of  the  cove- 
nant, there  will  be  no  estoppel,  and  an  after  acquired  estate  will 
not  pass  to  the  purchaser.     Judge  Wilde,  in  delivering  the  opin- 
ion of  the  court,  said :'  "  If  the   grantee   were   not   entitled  to 
recover  the  value  of  laiid  on  the  grantor's  covenant  of  warranty, 
then  in    such   a  case   it  is  obvious  that  this  species  of  estoppel 
would  not  be  applicable.     And  such   appears  to  be  the  law  in 
regard    to  the  covenant  in  question,    by  which    the  demandants 
attempt  to  estop  the  tenant  to  set  up  or  plead  the  title  of  Waters. 
The  tenant's  covenant  is  a  restricted  covenant,  and  is  coextensive 
with  the  grant  or  release.     He  agrees  to  warrant  the  title  granted 
or  released  and  nothing  more.     That  title  only  he  undertook  to 
assert  and  defend.     To  extend  the  covenant  further  would  be  to 
reject  or  do  away  with  the  restrictive  words  of  it,  and  to  enlarge 
it  to  a  general  covenant  of  warranty,  against  the  manifest  inten- 
tion of  both  parties.     The  tenant,  in  covenanting  to  warrant  and 
defend  the  granted  or  released  premises,  must  be  understood  to 
refer  to  the  estate  or  title  sold  or  released,  and  not  to  the  land, 
because  he  did  not  certainly  intend  to  warrant  any  estate  or  title 
not  intended  to  be  conveyed.     Now  if  Waters,  after  the  tenant's 
quit-claim  deed,  had   evicted  the  demandants,  this  would  have 
been  no  breach  of  the  tenant's  covenant.     Or,  if  the  tenant  now 


»  Comstock  V.  Smith,  13  Pick.  116;  Galvin,  29  Me.  183. 
Jackson  v.  Peck,  4  Wend.  300;  Miller  '^  Fox  v.  Widgeon,  4  Me.  218;  Alk-n 

V.   Ewing,  6   Cush.    36;  Kinsmaa  v.  v.  Say  ward,  b  Me.  227;  Doaue  v.  Wil- 

Loomis,    11    Ohio,    475;  Ilarimau    v.  ciUt,  5  GraJ^  328. 
Giay,  49  Me.  538;  Doane  v.  Wilcuit,         3  Conistock  v.  Smith,  13  Pick.  113; 

5  Gray,  328;  Ham  v.  Ham,  14  Me.  351 ;  Bell  v.  Twilight,  26  N.  H.  401 ;  Tillot- 

Coe  V.  Persons,  43  Me.  433;  Pike  v.  sou  v.  Kennedy,  5  Ala.  413;  Cbauvin 

V.  Wagner,  18  Mo.  531. 


Title  by  Estoppel.  823 

beld  under  Waters  without  having  obtained  the  fee  from  him,  lie 
might  pray  AVaters  in  aid,  and   thus  defend  liimself  against  the 
title  of  the  demandants,  the  title  of  Waters  being,  as  the  plea 
avers,  the  elder  and  better  title,  and  this  also,  would  be  no  breach 
of  the  tenant's  covenant.     He   did  not   undertake  to  convey  to 
demandants  an  indefeasible  estate,  but   only  his  own   title  ;  nor 
did  he  agree  to  warrant    and   defend  it  against   all    claims  and 
demands,  but  only  against  those  derived  from  himself,  by  which 
he  must  be   understood   to   refer  to  existing  claims  or  incum- 
brances, and  not  to  any  title  which  he  might   afterwards   acquire 
by  purchase  or  otherwise  from  a  stranger.'     There  is,  therefore, 
no  reason  to  be  assigned  why  the  tenant  should  not  purchase  the 
title  of  Waters.     The  demandants  cannot  thereby  be  prejudiced, 
nor  ought  they  therefrom  to  derive  any  benefit.     "  It  was  then 
contended  by  the  demandant's  counsel,  that,  admitting  tlie  ten- 
ant is  not  estopped  by  his  covenant  of  warranty,  he  is  neverthe- 
less estopped  by  his  conveyance  to  deny  that  he  had  any  title  in 
the  land   at   the   time  of  the   conveyance.     This   also   is  a  well 
established  principle  of  common    law.*     But    the   tenant,  in  his 
plea,  does  not  deny  that  he  had   anj'  title   to   the  land  ;  on  the 
contrary,  he  avers  that  before  the  time  of  his  conveyance  he  was 
in   possession  of  the   land  under  Waters;  that   afterwards   the 
demandants  disseized  Waters,  and  being  seized  by  disseizin,  they 
conveyed  to  the  tenant  all  their  right  and  title,  with  a  covenant 
of  warranty  similar  to  the  one  contained   in   his  conveyance  to 
,  them.     The  demandants,  in  their  turn,  would  be  estopped  to  aver 
that  they  had  no  title  in  the  land,  nor  is  there  any  such  averment 
in  the  pleadings.     The    tenant,  at  the  time  of  his  rcconvej'ance, 
might  have  had  a  valuable  interest  in  the  land  by  possession  and 
improvements,  although  Waters   had  a  paramount    title.     This 
interest,  whatever  it  vvas,  passed  to  the  demandants  by  the  ten- 
ant's deed,  and   it  was  all  the  title  lui  had  to  convey,  or  was  ex- 
pected to  convey.     If,  under  these  circumstances,  the  demand- 
ants could  now  acquire,  without  any  consideration,  another  title 
by  estoppel,  we  should  be  compelled  to  admit   that   estoppels  are 
as  odious  as  they  are  sometimes  said  to  be.      But  the  doctrine  of 

'  Ellis  V.  Welch,  6  Mass.  250.  ray.  12  Johns.  201 ;  Jackson  v.  Bull,  1 

'Co.  Litt.  45,  47;   Jackson  v.  Mur-     Jobns.  Cases,  91;  Isham  v.  Monice, 

Cro.  Car.  110. 


824  The  Law  of  Estoppel. 

estoppel  aids  iiincli  in  the  adiniiiistratiou  of  justice.  It  becomes 
odious  only  when  misunderstood  or  misapplied.  Nothing  can  be 
more  just  than  the  doctrine  oi  estoppel  urged  bj'  the  demandants' 
counsel,  when  applied  to  a  conveyance  with  a  general  covenant 
of  warranty  ;  but  to  apply  the  doctrine  to  the  tenant's  restricted 
conveyance  and  covenant,  would  bo  a  manifest  perversion  of  the 
piinciple  upon  which  the  doctrine  is  founded." 

§  690.  A  mere  intention  to  convey  will  not  be  sufficient  to 
pass  a  subsequent  estate,'  No  particular  form  of  words  is  essen- 
tial to  a  conveyance  to  uses,  but  the  deed,  if  it  cannot  operate  in 
one  way,  may  in  another,  to  effectuate  the  manifest  intention  of 
the  grantor.  Thus  where  lands  were  sold  with  warranty,  in 
which  the  grantor  at  the  time  had  no  interest,  an  after  acquired 
interest  in  them  was  not  lield  to  pass  by  estoppel,  but  as  he  had 
conveyed  for  a  valuable  consideration  his  interest  to  the  grantee, 
and  such  being  his  intention,  a  court  of  equity  would  decree  a 
title  thereto,  and  a  second  grantee,  purchasing  wirh  notice,  could 
not  hold."  This  is  a  distinction  without  a  difference.  In  the 
case  of  a  conveyance,  before  the  grantor  has  acquired  the  title, 
the  legal  estate  is  not  transfen-ed  by  the  statute  of  uses,  but  the 
conveyances  operate  as  an  agreement,  which  the  grantor  is 
entitled  to  have  executed  in  ciumcery. 

§  091,  A  covenant  of  warranty  estops  the  grantor  from  set- 
ting up  an  after  acquired  title  against  the  grantee,  for  it  is  a 
perpetually  operating  covenant;  but  he  is  not  estopped  by  a  cov- 
enant that  he  is  seized  in  fee  and  has  good  i-iglit  to  convey,*  for 
any  seizin  in  fact,  though  by  wrong,  is  sufficient  to  satisfy  this 
covenant,  its  import  being  merely  this,  that  he  has  the  seizin  in 
fact  at  the  time  of  conveyance,  and  thereby  is  qualified  lo  trans- 
fer the  estate  to  the  grantee.^  A  grantor,  conveying  by  deed  of 
bargain  and  sale,  by  way  of  release  or  quit-claim  of  all  his  right 
and  title  to  a  tract  of  land,  made  in  good  faith,  and  without  any 
fraudulent  representations,  is  not  responsible  for  the  goodness  of 

'  Chew    V.    Barnett,    11    S.    &    R.         •»  Chapell   v.    Bull,    17    Mass.    213- 
389.  Marston  v.  Hobb?  ^  Mass.  433;  Bcaice 

"  Way  V.  Arnold,  18  Ga.  181.  v.  Jackson,  4  Mass.  408;  Twambly  v. 

2  Allen  V.  Saj^ward,  5  Me.  227.  Ilenley,  4  Mass.  441 ;  Stevens  v.  Ste- 

vens, 13  Johns.  31G. 


Title  by  Estoppel.  825 

the  title  beyond  the  covenants  in  his  deed.  A  deed  of  this  char- 
acter purports  to  convey  nothing  more  than  the  interest  or  estate 
of  which  the  grantor  is  seized  or  possessed  at  the  time,  and  does 
not  operate  to  pass  or  to  bind  an  interest  not  then  in  existence.' 
Neither  is  one  wlio  has  purchased  land  in  his  own  name  for  the 
benefit  of  another,  which  he  has  afterwards  conveyed  by  deed  to 
his  employer,  estopped  by  such  deed  from  claiming  the  land  by 
an  elder  and  after  acquired  title.  Nor  is  the  heir  estopped  from 
questioning  the  validity  of  his  ancestor's  deed,  as  a  fraud  against 
an  express  statute."  But  while  a  conveyance  must  necessarily 
fail  of  its  object  at  law,  unless  the  estate  to  be  conveyed  is  vested 
in  interest  at  the  time  when  the  deed  is  executed,  it  will,  not- 
withstanding, be  enforced  in  equity,  as  an  executory  agreement 
to  convey,  whenever  the  intention  of  tiie  parties  is  apparent,  and 
sustained  by  a  sufficient  consideration.^ 

§  692.  An  estoppel  of  a  warranty  may  be  restricted  by  its 
own  terms,  or  by  those  of  a  deed  in  which  it  is  inserted,  and  a 
deed  without  a  warranty  may  operate  as  an  estoppel,  in  order  to 
prevent  a  faihire  of  the  purpose  for  which  it  was  executed.* 
Thus  a  warranty  against  a  particular  outstanding  title  will  bind 
and  pass  that  title  by  estoppel,  if  subsequently  acquired  by  the 
warrantor."  So  where  A.,  having  only  an  equitable  fee  in  land, 
mortgaged  it  by  lease  and  release  to  B.,  covenanting  that  he  was 
legally  or  equitably  seized,  and  reciting  that  he  was  legally  or 
equitably  entitled  to  the  premises,  and  the  legal  estate  was  after- 
wards conveyed  to  him,  and  by  him  was  sold  to  C,  he  was  not 
estopped  to  set  up  his  after  acquired  legal  estate,  either  by  his 
covenant  or  his  recital,  they  being  in  the  alternative,  and  not  pos- 
itive affirmations  that  it  was  a  legal  interest  to  which  he  was 
entitled,  and  that  the  words  of  release  in  his  deed  only  operated 
to  pass  whatever  interest  he  had  in  the  premises  at  the  time.^ 
And  where  the  grant  was  of  all  the  grantor's  right,  title  and 
interest  in   certain   premises,    with   covenants    that    neither  the 

'  Van  Rensselaer    v.   Kearney,    11  *  Vau  Rensselaer    v.    Kearney,  11 

Howard,  297.  Howard,  297. 

*  Doe  V.  Lloyd,  8  Scott,  93.  ^  gi^^e  v.  Tucker,  13  Vt.  39;  Trull 

^  Goodson  V.  Beacham,  24  Ga.  180;  v.  Eastman^  3  Met.  121;   Kimball  v. 

Bayler  v.    Comfortb,   40   Pa.  St.  37;  Blaisdell,  5  N.  H.  525. 

Way  V.  Arnold,  18  Ga.  181.  «  Right  v.  Bucknell,  3  B.  &  Ad.  278. 


826  The  Law   of  Estoppel. 

grantor,  nor  any  person  claiming  nnder  liim  should  claim,  etc., 
there  was  held  to  be  a  qnaliiicd  warranty  of  the  land  and  prem- 
ises conveyed.  The  warranty  was  co-extensive  with  the  estate 
which  the  deed  purported  to  convey,  bnt  as  that  did  not  purport 
to  convey  any  interest  thereafter  to  be  acquired,  it  did  not  affect 
any  after  acquired  title.' 

§  693.  Where  a  person'  gives  a  quit-claim  without  covenants 
a  title  subsequently  acquired  by  him  does  not  inure  to  the  gran- 
tee." Although  a  grantor  cannot  set  up  a  hostile  title  existing  at 
the  time  of  his  conveyance,  because  he  is  estopped  by  his  cov- 
enant, yet  if  the  deed  be  a  mere  quit-claim,  without  covenant  or 
fraud,  the  grantor  is  not  debarred  from  subsequently  acquiring, 
and  setting  up,  any  other  title,  whether  existing  at  the  time  of 
his  conveyance,  or  subsequently  created.  He  may  set  up,  as 
against  his  own  deed,  a  title  acquired  by  him  by  a  contempora- 
neous, or  subsequent  practical  location,  with  an  adverse  possession 
for  the  requisite  length  of  time.'  Hence,  a  conveyance  of  all  a 
man's  right,  title  and  interest  will  not  estop  him  from  proving 
that  he  had  no  right  to  convey,  and  evicting  the  grantee*  by  a 
subsequently  acquired  title,^  a  conveyaTice  by  deed  of  bargain  and 
sale  or  release  without  warranty  or  covenants,  does  not  bind  an 
after  acquired  estate  then  contingent.'  A  party  against  whom  a 
judgment  is  rendered  in  a  real  action,  he  having  then  an  equi- 
table title,  is  not  thereby  estopped  if  he  afterwards  acquires  the 
legal  title."     So  a  covenant  in  a  deed,  that  the  grantor  will  war- 


'  Doane  v.    Wilcutt,   5   Gray,  328;  Bruce  v.  Luke,  9  Kas.  201;   Read  v. 

Raymond  v.  Raymond,  10  Cush.  134;  Whettemore,  60   Me.  479;    Sydnor  v. 

Gee  V.  Moore,  14  Cal.  472;   Miller   v.  Palmer,    29   Wis.    226;    Shumaker  v. 

Ewing,  6  Cush.  34;  Gibbs  v.  Tliayer,  Johnson,  35  lud.  33. 

6  Cush.  32;  Newcomb  v.  Presbrey,  8  *  Miller  v.  Ewing,  6  Cush.  34;  Allen 

Met.  406.  V.    Ilolton,    20    P4ck.    458;    Hope    v. 

Mlariman   v.    Gray,    49    Me.    537;  Stone,  10  Minn.  141 ;  Locke  v.  White, 

Needles  v.  Hanifan,  11  111.  App.  303;  89  Ind.  492;  Right  v.  Bucknell,  3  B. 

Robertson    v.    Wilson,    38   N.   II.  48;  &  Ad.   278;   Friiick   v.  Darst,  14   111. 

San  Franci.sco  v.  Lawton,  18  Cal.  465;  334;    Kennedy  v.  Skeer,  3   ^Vatts,  95; 

Gibson  v.  Clioteau,  39  Mo.  566;  Cadiz  Shumaker  v.  Johnson,  35  Ind.  33. 

Majors.  33  Cal.  288;  Graham  v.  Gra-  *  Lounsdale   v.    Portland,    1    Oreg. 

ham,  55  Ind.  23.  381. 

3  Cramer   v.  Benton,  64  Barb.  522;  «  Brown  v.  Roberts,  24  N.  H.  131; 

Freeman  v.  Thayer,  24  Me.  369. 


Title  by  Estoppel.  827 

rant  against  all  persons  claim ing  under  liim,  does  not  estop  him 
from  setting  np  a  title  subsequently  acquired  by  purchase  or 
otherwise.' 

§  694.  Where  a  grant  in  a  deed  is  of  all  the  grantor's  right 
title  and  interest  in  the  land,  and  of  the  land  itself,  or  any  par- 
ticular estate  in  the  land,  the  warranty  is  of  the  premises,  viz. :  of 
the  estate  granted,  and  must  be  confined  to  the  estate  vested.  A 
conveyance  of  all  the  right,  title  and  interest  in  land  is  sufficient 
to  pass  the  land  itself,  if  the  party  conveying  has  an  estate 
therein,  at  the  time  of  tiie  conveyance,  but  it  passes  no  estate 
which  is  not  then  possessed  by  the  party.^  The  grant  in  legal 
effect  operates  only  to  pass  the  vested  interest,  and  the  warranty 
being  co-extensive  with  the  grant,  does  not  extend  to  the  contin- 
gent interest,  and  does  not  operate  on  it  by  way  of  estoppel.^ 
The  estoppel  of  a  warranty  may  be  limited  by  the  object  of  the 
deed,  and  when  that  is  simply  to  convey  or  divide  an  estate 
which  the  parties  have,  it  will  not  take  effect  on  an  after  acquired 
title.* 

§  695.  In  cases  of  involuntary  alienation,^  as  where  a  creditor 
levies  upon  the  land  of  his  debtor,  the  latter  is  not  estopped  to 
assert  a  subsequently  acquired  title.^  If  a  disseizee  take  a  deed 
from  his  disseizor  he  is  not  estopped  to  set  up  a  former  and  better 
title.'  So  where  a  grantee  conveys  all  his  right  and  interest  in 
the  granted  premises  he  is  not  estopped  to  claim  against  his 
grantee  under  a  newly  acquired  title,  though  his  deed  contains  a 
general  covenant  of  warranty.*  A  mere  deed  or  grant  with  or 
without  an  indenture,  does  not  in  a  court  of  law  work  an  estop- 
pel.    Whether  operating  as  a  grant,  a  release,  or  confirmation, 

'  Coraslock  V.  Smith,  13  Pick.  16;  White,  89  Ind.  492. 

Jackson    v.     Winslow,    9    Cow.     13;  •*  Doaue  v.  Wilcutt,  5  Gray,  328. 

Kinsman   v.    Loomis,    11    Ohio,    475  » prgy   ^     Ramsour,  66  N.  C.  466; 

Jackson  v.  Hubble,  1  Cow.  613.  Gorhani    v.    Brcniian,    2    Dev.    174; 

^  Brown  v.  Jackson,  3  Wheat.  449.  Emerson  v.  Sansom,  41  Cal.  552;   Du- 

^  Miller    v.    Evving,    6    Cusli.    34;  gald  v.  Dougherty,  11  Ga.  578. 

BluHchard   v.    Brooks,    12    Pick.    47;  "^  Freeman   v.   'J'hayer,  29  Me.  369; 

Patterson     v.    Pease,    5    Ohio,    190;  Tillotson  v.    Kennedy,    5    Ala.    413; 

Kercheval  v.  Triplett,  1  A.  K.  Marsh.  Friuk  v.  Darst,  14  111.  304;  Brown  v. 

493;  Dougal  v.  Fryer,  3  Mo.  29;  Sliu-  Roberts,  24  N.  H.  131. 

maker  v.  Johnson,  35  Ind.  33;  White  '  Flagg  v.  Mann,  14  Pick.  47. 

V.  Brocaw,  14  Ohio  St.  339;  Locke  v.  «  Hope  v.  Stone,  10  Minn.  133. 


828  The  Law  of  Estoppel. 

if  an  lieir  apparent  wero  to  grant  his  interest,  it  would  not  have 
any  effect  at  law,  though  lie  slum  Id  afterwards  become  actually 
seized.  The  words  "  granted,  bargained,  tfold  and  released,"  in  a 
deed,  do  not  amount  to  an  estoppel  as  to  any  future  estate,  nor  do 
any  of  the  deeds  which  take  effect  by  the  statute  of  uses.'  Wliilc 
a  deed  of  acquittance  or  release  may  in  certain  cases  be  an  esto])- 
pel,  it  being  a  valid  and  final  bar  to  all  existing  claims,  and  all 
the  possibilities  arising  from  previous  contracts,  of  which  it 
imports  a  relinquishment,  it  cannot  affect  rights  of  which  the 
foundation  is  subsequently  laid.°  Thus  where  one  who  was  entitled 
to  a  contingent  remainder  conveyed  the  same,  and  subsequently 
the  estate  became  vested,  if  the  conveyance  was  by  quit-claim, 
the  deed  was  no  estoppel  to  his  claiming  the  estate,  if  with  cov- 
enants of  warranty,  it  is  an  estoppel.  In  this  case  the  contin- 
gency consisted  in  the  grantor'^s  taking  as  the  oldest  surviving 
son  at  the  death  of  his  father.^  So  a  release  of  a  disseizee  to  a 
disseizor,  will  effectually  estop  all  of  his  claim  to  the  estate."  A 
grant,  release,  or  bargain  and  sale,  only  operates  as  an  estoppel 
between  parties  and  privies,  and  does  not  bind  or  transfer  future 
or  contingent  estates  by  estoppel.  An  estate  acquired  after  the 
execution  of  a  deed  will  not  pass  by  its  operation  merely  as  such, 
and  no  contingent  or  executory  estate  can  be  conveyed  either  by 
a  common  law  grant,  or  under  the  provision  of  the  statute  of 
uses,  and  that  not  oidy  does  not  pass  by  the  estate,  but  it  does 
not  estop  the  grantoi-  and  those  claiming  under  him  from  recov- 
ering the  land  at  a  subsequent  period.^ 

§  696.  A  deed  estops  the  grantor  from  an  equitable  claim,' 

'  Brow'j  V.  Jackson,  3  Wheat.  449;  ILun  v.    Ham,  14  Me.  3G1;  Kinsman 

Kimball  v.  Blaisdell,    5  N.    II.   .WS;  v.  Locmis,  11   Oiiio,   475;  Biown  v. 

Dartv.  Dart,  7  Conn.   250;   Clark  v.  .lackson,  9  Wheat.  453;   Bell  v.  Twi- 

Baker,   14  Cal.  612;   Burt  Real  Frop.  light,  26  N.  H.  401;  Sparrow  v.  King- 

§  593;  Wms.  Real  Prop.  329.  man,  1  N.  Y.  242;  Dodswell  v.  Bucli- 

«  Co.  Litt.  265,  a.;   Burt  Real  Prop.  anan,  3  Leigh,  365;   Dart   v.  Dart.  7 

§149.  Conn.  250;   Robertson  v.  Wilson,  33 

3  Robertson  v.  Wilson,  38  N.  11.  4S;  N.  II.  48;  Mallaek  v.  Lee,  9  lud.  298; 

Read  v.  Fogg,  60  Me-  479.  Frink  v.  Dar.st,  14  HI.  304;  Blandiard 

•*  Perkins,  §  86;  2  Prest.  Conv.  269.  v.  Brooks,  12  Pick.  47;  Byler  v.  Com- 

^  Pellctrau  v.    Jackson,    11    Wend.  monwealth,    40   Pa.   St.   37;   Pass   v. 

110;  Jackson   v.    Waldron,  13  W'end.  Lee.  10  Ired.  410. 
178;  Comstock  v.  Smith,  10  Mass.  116;         •>  Breeding  v.  Stamper,  18  B.   Mon. 

175. 


Title  by  Estoppel.  829 

or  a  claim  of  homestead.'  The  rule  of  law  forbidding  champerty- 
does  not  prevent  an  estoppel  of  the  grantor  himself.''  Where 
A.  convej'ed  to  B.  land  to  which  he  had  no  title,  but  afterwards 
obtained  a  deed,  took  actual  possession,  which  he  held  adversely 
to  all  the  world  for  seven  years,  it  was  held  that  B.'s  right  of  entry 
was  taken  away.' 

§  697.  A  case  similar  to  the  instances  heretofore  cited  of  an 
after  acquired  estate  passing  by  estoppel  but  not  resting  on  the 
same  technical  ground  is  where  one  conveys  an  undefined  interest 
in  lands,  to  which  at  the  time  he  has  a  general  and  undelined 
title,  and  subsequently  acquires  certain  specified  lands  in  comple- 
tion of  his  former  right.  The  lands  immediately  vest  in  the 
assignee.  Thus,  where  one  having  a  contract  for  a  grant  of 
8,000  acres  of  land  from  a  State  upon  the  completion  of  certain 
roads,  to  be  laid  off  in  any  lands  through  which  such  roads  might 
pass,  before  any  survey  or  conveyance  from  the  State ;  trans- 
ferred an  undivided  third  of  this  quantity  of  land,  and  after- 
wards took  a  deed  from  the  State ;  both  the  gi'antor  and  all 
claiming  under  him  were  estopped  from  claiming  such  third 
part.''  So  where  a  joint  proprietor  of  a  township  entitled  to  a 
certain  number  of  acres,  conveys  his  interest  before  any  location 
is  made  to  him,  a  subsequent  location  inures  to  the  benefit  of  the 
grantee  and  vests  a  portion  of  the  land  in  him  in  severalty." 

§  608.  Where  tenants  in  common  convey  jointly  with  war- 
ranty land  upon  which  one  of  them  has  a  mortgage  from  the 
other,  the  tenant  is  estopped  after  making  his  joint  warranty  deed 
from  claiming  any  interest  in  the  land  under  the  mortgage  made 
to  him  by  his  co-tenant.'^  So  a  surviving  partner  of  a  firm  which 
had  been  engaged  in  gambling,  and  purcliased  and  used  a  house 
for  gambling  purposes,  cannot  iui peach  the  title  of  the  grantee  of 
the  other  partner,  on  the  ground  that  the  house  is  unlawfully 
used,  being  estopped  by  his  privity  with  the  grantor.'     Where  an 

'  Foss  V.  Strachn,  42  X.  H.40;  Will-  ■•Fairbanks  v.    Williamson,  7  Me. 

lams  V.  Sweetland,  10  Iowa,  51.  96. 

■^  Nance    v.    Thompson,    1    Sueed,  ^  Burgbardt    v.    Tiu-ner,  12    Pick. 

321.  534. 

»  Eddleman  v.   Carpenter,  7  Jones,  "^  Denham  v.  Allen,  20  Me.  228. 

616.  1  Watson  v.  Fletcher,  7  Grattan,  1, 


830 


The  Law  of  Estoppel. 


occupant  of  lands  claims  under  a  warranty  deed  from  a  third  per- 
son, he  is  estopped  to  allege  that  he  holds  in  common  with  the 
plaintiff.'  So  one  of  two  grantees  who  lias  accepted  the  deed  hy 
acting  under  it,  in  executing  conveyances  for  parts  of  land,  is 
estopped  from  denying  the  title  of  his  co-tenant  in  common,  and 
cannot  claim  the  whole  by  a  title  ]xiramouMt  to  that  under  which 
his  co-tenant  claims."  A  party  cannot  controvert  the  title  (tf  one 
under  whom  he  claims.'  If  either  the  pleading  or  evidence  show 
that  both  parties  trace  their  titles  to  the  same  source,  neither  can 
be  permitted  to  attack  the  title  of  their  common  grantor.*  So 
where  one  has  expressly  recognized  the  title  of  another,  and  thus 
estopped  himself  from  questioning  its  validity  holding  under  him 
as  vendee,  must  be  held  to  a  i-ecognition  of  that  title,  and  nnist 
sliow  that  he  has  accpiired  it.^  A  party  cannot  set  up  and  at  the 
same  time  deny  the  title  under  which  he  holds,  as  against  his 
adversary  having  claim  under  the  same  title.'  Thus  where  a 
party,  whose  land  is  sold  for  the  non-payment  of  taxes,  in  an 
action  for  the  land,  is  estopped  to  sa}'  that  nothing  passed  hy  the 
sale  and  that  he  had  no  title.'  So  an  attorney  who  procured  a 
judgment  for  his  client  which  he  knew  to  be  invalid,  and   after- 


»  Siglar  V.  Van  Ripar,  10  AVeud. 
414. 

2  Funk  V.  Newcomer,  10  Md.  301; 
Taylor  v.  Needhani,  3  Taunt.  278; 
Doe  V.  Stone,  3  C.  B.  176. 

3  Gillian  v.  Bird,  8  Ired.  280: 
Crocker  v.  Pierce,  31  Me.  177;  Russell 
V.  Watt.  41  Miss.  602;  Ives  v.  Sawyer, 
4  D.  &  B.  51;  Warsloy  v.  Johnson,  5 
Jones,  72;  Itochell  v.  Benson,  Meigs, 
3;  "Wilkinson  v.  May,  3  Head,  173; 
Woburu  V.  Ilenshaw,  101  JMass.  193; 
Murphy  v.  Baruett,  2  Murph.  201; 
Wall  V.  Hill,  1  B.  Mon.  290;  Sim- 
mons V.  Hendrick.sou,  3  Harr.  103; 
Den  V.  Gates,  4  D.  &  B.  303;  Conklin 
V.  Smith,  7  Ind.  107:  Douglass  v. 
Scott,  5  Ohio,  194;  Brown  v.  Coombs, 
29  N.  J.  L.  36;  Boiling  v.  Teel,  76  Ya. 
487. 


*  Boiling  V.  Teel,  76  Va.  487;  An-.es 
V.  Beckley,  48  Vt.  395;  Whissenluirst 
V.  Jones,  78  N.  C.  361. 

5  Giranlt  v.  Zuntz,  15  La.  An.  684; 
Williams  v.    Howard,  3  Murph.    74. 

•^  Cliouquette  v.  Barada,  33  Miss. 
249;  Estep  V.  Estep,  23  lud.  114;  Mil- 
ler V.  Larson,  17  Wis.  624;  Ludlow  v. 
Gilman,  18  Wis.  552;  Elwood  v.  Lan- 
non,  27  Md.  200;  Girault  v.  Zuntz,  15 
La.  An.  684;  Bliss  v.  Smith,  1  Ala. 
273;  Walker  v.  Smith,  8  Cal.  398; 
Rochell  V.  Benson,  1  Meigs,  3;  Wocni 
V.  ^Maguire,  17  Ga.  303;  Loyd  v. 
Mortee,  14  La.  Ann.  107;  Dooky  v. 
Woleott,  4  Allen,  106;  Woolfoik  v. 
Ashley,  2  Met.  (Ky.)  288;  Lund  v. 
Bank,  37  Barb.  129;  Piersou  v. 
David,  1  Iowa.  23;  Hotchkiss  V. 
Thomas.  6  Jones  L.  537. 

'  Norwich  v.  Congdon,  1  Root,  222. 


Title  by  Estoppel.  831 

wards  assisted  liim  to  purchase  the  property  upon  execution  sale 
thereunder, — Held^  to  be  estopped  from  afterwards  acquiring  title 
to  the  same  property  from  the  judgment  debtor.' 

§  699.  "  A  tax  deed  creates  no  estoppel  upon  the  former 
owner  for  the  reasons  that  it  is  not  conchisive  evidence  of  title. 
Its  recital  binds  no  one.  It  does  not  i_pso  facto  transfer  the  title 
of  the  owner  as  in  grants  from  the  government  or  in  deeds 
between  man  and  man.  The  deed  is  not  the  title  itself  nor  even 
evidence  of  it.  No  presumption  arises  upon  the  mere  production 
of  the  deed  that  the  facts  upon  which  it  is  based  have  any  exist- 
ence ;  when  it  is  shown,  however,  that  the  ministerial  otiicers  of 
the  law  have  performed  every  duty  v»hicli  it  imposed  upon  them 
— every  condition  essential  in  its  character — then  the  deed 
becomes  conclusive  evidence  of  title  in  the  grantee  according  to 
its  extent  and  import.  But  the  instant  it  is  shown,  if  it  is  shown 
tliat  the  requirements  of  the  law  were  not  complied  with,  the  tax 
deed  is  a  nullity.  Nor  can  any  legislative  body  declare  that  it  is 
conclusive,  for  the  reason  that  a  state  legislative  body  cannot 
violate  the  obligations  of  contracts  and  divest  the  estate  of  the 
citizen.  It  cannot  do  indirectly  that  which  it  is  foi'bidden  to  do 
by  direct  means,  nor  can  it  under  the  guise  of  taxation  or  the 
appropriation  of  private  property  to  public  purposes,  take  the 
land  of  A.  and  give  it  to  B.  Suppose  A.  is  the  owner  and  in  pos- 
session of  a  tract  of  land  worth  two  thousand  dollars.  It  is  sold 
at  a  tax  sale,"  and  "  B.  purchased  it  at  lifty  dollars  ;  he  procures 
his  deed  and  brings  an  action  of  ejectment  against  A."  A.  relies 
upon  one  of  three  defenses  which  ordinarily  are  conceded  to  be 
valid.  1st.  That  the  land  was  not  sul)ject  to  taxation.  2.  Or, 
that  it  was  never  listed  or  valued  and  assessed.  3.  Or,  that  he 
paid  the  taxes  before  the  sale.  Can  a  legislature  then  step  in  and 
deprive  him  of  his  defense  by  declaring  that  a  deed  shall  be  con- 
clusive upon  all  points?  Certainly  not,  for  no  legislature  or  law- 
making power  possesses  such  arbitrary  authority. 

§  700.  The  taxing  power  extends  to  the  levy  and  collection  of 
the  tax.  Taxable  property  is  only  embraced  by  it,  and  the  power 
to  collect  cannot  be  extended  so  as  to  reacli  and  divest  the  prop- 

'  Ringo  V.  Binns,  10  Pet.  209;  Phillips  v.  Blair,  38  Iowa,  649. 


832  The  Law  of  Estoppel. 

erty  of  one  wlio  has  paid  Lis  tax  promptly.  The  law  does  not, 
and  never  intended  that  a  party  who  had  performed  all  his  duties 
to  the  public,  should  be  deprived  of  his  property  in  this  way  ; 
the  power  of  taxation,  so  far  as  it  relates  to  the  collection  of  taxes, 
was  designed  to  operate  upon  those  only  who  should  omit  will- 
fully and  negligently  to  pay  these  taxes  to  which  they  might  be 
subject,  and  which  should  be  legally  assessed  upon  their  estate, 
and  not  npon  those  who  promptly  perform  all  their  constitutional 
obligation.  The  obligation  is  reciprocal :  if  the  citizen  performs 
his  duty  to  the  government,  the  government  should  perform 
its  duties  to  the  citizen. 

Among  the  first  of  these,  is  protection  to  his  property — not 
only  from  private  force,  cupidity  or  fraud,  but  from  governmental 
plunder,  and  it  cannot  be  taken  by  the  State,  or  its  agents,  with- 
out any  fault  or  omission  on  his  part.  If  the  land  was  not  liable 
to  taxation,  if  no  taxes  had  ever  been  assessed  upon  it,  or  if  the 
taxes  had  been  paid,  the  power  of  sale  never  attached  to  it,  and 
for  any  legislature  to  declare  or  any  court  to  decide  that  the 
owner  is  estopped  under  a  tax  deed,  from  showing  that  fact,  is 
not  only  unconstitutional,  but  would  be  a  monstrous  doctrine.  So 
that  notwithstanding  legislative  enactment  the  doctrine  of  estoppel 
cannot  be  applied  to  a  tax  deed.'  A  party  is  bound  by  the 
record  under  which  he  claims  title."  A  county  making  a  tax 
deed  is  one  of  the  grantors,  and  is  estopped  b}'  tlie  recitals  therein. 
Thus,  where  a  Clerk  of  the  Board  of  Supervisors  without  author- 
ity has  issued  a  tax  certiticate,  reciting  that  it  was  assigned  by  the 
county  to  J.  C,  and  by  him  assigned  to  the  defendant,  the  county 
is  estopped  from  objecting  to  such  assignment  or  the  deed  issued 
npon  the  certiticate,  and  the  (county)  former  owner  of  the  certi- 
ficate cannot  avail  itself  of  the  original  defect  of  authority.  It 
estops  itself  by  the  issuing  of  the  deed  f  but  in  later  cases  it  is 
held,  that  a  county  is  not  estoj)j>ed  to  set  up  its  title  to  land  by 
the  unauthorized  acts  of  its  officers  in  assessing  and  selling:  its 
lands  for  taxes,  the  land  not  being  taxable ;  the  sale  and  deed  are 
void  for  all  purposes*  where  one  of  the  parties  claiming  title  to 


»  Blackwell  oa  Tax  Titles.  Laugljlin.  8  Ohio,  114. 

"  Blackwell  oa  Tax  Titles,  600;  Coit         ^  Woodman  v.  Clapp,  21  Wis.  350. 
V.  Wells,  3  Vt.  318;  Kellogg  v.  Mc-         "  Howard  Co.  v.    BuUis,  49   Iowa, 


Title  by  Estoppel.  833 

the  land  liad  made,  iu  the  capacity  of  collector,  which  office  he 
formerly  held,  a  tax  deed  of  the  laud,  under  wliich  the  other 
part}'  claims,  and  such  tax  deed  is  void  by  reason  of  stating  a  sale 
in  lump,  whereas  the  sale  was  in  parcels.  The  party  who  made 
the  deed  is  not  estopped  from  setting  up  the  defect  in  the  deed.* 
But  a  tax  deed  cannot  be  impeached  by  a  mere  intruder.^  A 
legislature  cannot  make  a  tax  deed  conclusive  evidence  of  matters 
which  are  vitally  es§ential  to  any  valid  exercise  of  the  taxing 
power.^  But  in  Iowa  the  tax  deed  is  made  conclusive  evidence 
that  the  property  had  been  listed  and  assessed  at  the  time  and  in 
the  manner  required  by  law,  and  that  all  the  pre-requisites  of  the 
law  were  complied  with.  Under  this  statute,  the  deed  is  con- 
clusive evidence  of  the  manner  of  the  assessment,  levy  and 
sale,  though  not  conclusive  of  these  jurisdictional  facts  them- 
selves.'' 

519;  Bixby  v.  Adams  Co.,  49  Iowa,  *  jVIcCready  v.  Sexton,  29  Iowa,  3.'56; 

507.  Eeraa  v.  Cowan,  31  Iowa,  135;    Eld- 

•  Byum  V.  Cook,  21  Iowa,  392.  ridge  v.  Kuhl,  27  Iowa,  160;   Bulkly 

2  Wheeler  v.  Winn,  58  Pa.  St.  192.  v.  Callanan,  32  Iowa,  461;  Eastou  v. 

3  Abbott  V.  Lindenhower,  42  Mo  62 ,  Perry,  37  Iowa,  681 ;  Rev.  §  784. 

Vol.  I.— 53 


834  The  Law  of  Estoppel. 


CHAPTER  XL 

LEASES  BY  ESTOPPEL. 

Section  701.  Leases  become  operative  by  way  of  estoppel 
where  a  lessor,  at  the  time  of  makin<>-  the  lease,  has  no  estate  iu 
the  sul)ject  matter  of  the  lease.  In  order  that  the  estoppel  can 
operate  upon  a  lease  of  this  kind,  it  must  be  by  indenture,  thus 
becoming  the  act  of  both  parties,  in  order  that  the  estoppel 
thereby  created  may  be  mutual.'  Mutuality  is  a  necessary 
ing-redient  of  an  estoppel.  Thus,  suppose  A.  makes  a  deed  of 
indenture  of  lease  of  premises  to  which  he  has  no  title,  and  after- 
wards acquires  one  during  the  term  ;  he  will  not  be  admitted  to 
deny  that  his  lessee  had  a  good  title  to  the  same,  nor,  on  the  other 
hand,  will  the  lessee,  if  permitted  to  occupy  under  such  a  lease, 
be  at  liberty  to  deny  the  title  of  his  lessor.*  For  the  want  of 
mutuality,  infants  and  denies  covert  are  excluded  from  the  benefit 
of  a  lease  by  estoppel  where  the  lessor  has  no  title  at  the  time  of 
the  demise.'  The  I'ule  that  the  interest,  when  it  accrues,  feeds 
the  estoppel,  and  that  an  after  acquired  estate  inures  to  the 
benefit  of  the  grantee,  is  peculiarly  applicable,  and  in  fact  is  one 
of  the  two  modes  under  the  old  civil  law,  where  an  estate  actually 
passed  by  estoppel.  Such  is  now  and  ever  has  been  the  rule,* 
but  is  wholly  inapplicable  where  the  lessor  has  any  legal  estate  in 
the  premises  which  passes   by  the  lease,  other  than   that  which 

'  Burton  lieal  Prop.  §  850;   Co.  Lit.  Burton  Real   Property,  §   850;   Smith 

353,  a;  1  Piatt. Lease.s,  55.  Laud,  and   Tenant,    32;   Co.  Lit.  271; 

^  Sturgeon   v.    Wingfield,  15  M.  &  Wms.    Real    Prop.    329;    Bac.    Abr. 

W.  224;  Bank   v.  Mersereau,  3   Barb.  Lea.se,  O. 

Ch.    567;    Rawlyn's   Case.  4  Rep.  53;  «  Boiling   v.    Mayor,   3   Rand.   568; 

Wbitton   v.    Peacock,    2   Bing.  IS.  C.  Doe  v.  Skirrow,  7  A.  &  E.  157;  Rigbt 

411;   Wiam   v.  Morris,  Cro.  Car.  110;  v.  Bucknell,  2  B.  &  A.  278;  Gillespiev. 

Luxton     V.     Stephens,     3    P.    Wms.  Nabors,  59  Ala.  441 ;  1  Piatt  Leases,  55. 

373  ;   Jackson  v.  Bull,    1  Johns.  Cas.  •»  Baxter  v.    Bradbury,  20   Me.  260; 

81;  Jackson  v.  Stevens,  16  Johns.  110;  White  v.  Patten,  24  Pick.  324;  Wms. 

Real  Prop.  33C. 


Leases  by  Estoppel.  835 

he  has  in  terms  demised.'  One  reason  for  this  rule,  is  that  in 
order  to  ascertain  what  the  amount  of  tlie  estate  is  which  actually 
passes  b}^  the  lease,  would  open  the  very  inquiry  which  it  is  the 
object  and  effect  of  an  estoppel  to  preclude.  It  passes  onlj^  what 
he  has  who  makes  it,  while  if  it  is  wrongful,  as  by  feoffment, 
fine,  and  the  like,  it  operates  to  bar  the  estate  which  may  after- 
wards be  in  the  one  making  it.^  The  distinction  should  always 
be  observed  between  the  conveyance  of  a  particular  parcel  of 
estate  by  description,  and  of  the  right  or  title  that  the  grantor 
has  in  it. 

§  702.  A  man,  by  accepting  a  lease  by  indenture  from  a  stran- 
ger, may  bind  himself  to  be  treated  as  the  lessor's  tenant,  and  to 
pay  him  rent  during  the  term  purported  to  be  granted  by  the 
lease,  unless  he  has  been  induced  by  fraudulent  representations  to 
accept  the  lease.'  A  lessee  who  has,  under  such  a  lease,  had  the 
possession  and  use  of  the  property,  is  estopped  from  questioning- 
its  validity  in  an  action  to  recover  the  stipulated  rent.  The  estop- 
pel which  thus  binds  the  lessee,  also  binds  all  who  claim  through 
or  under  him  ;  and  one  to  whom  he  has  transferred  his  interest 
in  the  demised  property,  and  M'ho  has  had  the  use  and  occupa- 
tion thereof,  may  not  question  the  validity  of  his  lease."  Where 
one  in  possession  of  land,  coveiiants  with  the  owner  to  purchase 
it  of  him,  but  fails  to,  and  the  vendor  brings  ejectment  for  the 
land,  the  tenant  is  estopped  by  his  covenant  to  set  up  an  out- 
standing title  against  the  claim  of  the  plaintiff.  If  the  title  of 
a  co-tenant  entitled  to  disaffu-m  a  lease  becomes  vested  in  the  one 
by  whom  the  instrument  was  executed,  the  newly  acquired  title 
of  the  lessor  will  inure  by  estoppel  to  the   benefit  of  the  lessee." 

§  703.  Estoppels  appl_y  to  leases  for  years  with  greater  force 
than  to  deeds  poll.  Thus,  if  a  person  execute  an  indenture,  pur- 
porting to  demise  land  for  a  term,  in  which  he  has  no  estate  in 
fact,  or  no   estate    by  a  good  legal   title,  and   the  want  of  such 

'  Cuthbertson  v.  Irving,  4  Hurl.  &         *  Woodruff  v.  Uy.   Co.,  93  N.  Y. 
Nor.  743.  609. 

■  2  Prest.  Abst.  411.  s  Jackson   v.    Ayers,  1   Johns.  224; 

3  Alderson  v.  Miller,  15  Gratt.  279;      Walker  v.  Sedgwick,  8  Cal.  403. 
2  Prest.  Abst.  210.  «  Cunningham   v.  Pattee,  99  Mass. 

248. 


836  The  Law  of  Estoppel. 

estate  does  not  appear  upon  the  instrument,  the  lease  will  oper- 
ate upon  any  interest  which  he  may  afterwards  acquire  in  the 
same  land  during  the  continuance  of  the  term.  It  is  requisite 
that  it  should  be  an  indenture,  in  order  to  bind  both  parties,  and 
make  the  estoppel  reciprocal,  while,  if  any  valid  interest,  how- 
ever short  it  may  be  of  that  pretended,  actually  passes, from  the 
lessor  to  tlie  lessee  ;  the  lease  works  no  estoppel  against  him." 
Coke  cites  this  case  :  A.,  tenant  for  life  of  B.,  makes  a  lease  for 
twenty  years,  then  buys  the  reversion.  B.  then  dies.  A.  may 
enter  and  avoid  his  lease  by  virtue  of  his  newl}^  acquired  title. 
But  had  he  no  title  when  he  made  the  lease,  and  he  tiien  acquired 
one,  he  could  not  have  contradicted  his  own  lease,  and  say  it  was 
wholly  void.''  If  the  conveyance  be  rightful,  as  such,  it  derives 
its  validity  from  the  statute  of  uses.  The  circumstance  that  a 
lease  for  years,  was  ancientl}'  nothing  more  than  a  mere  contract, 
explains  a  curious  point  of  law,  relating  to  the  creation  of  leases 
for  3'ears,  which  does  not  hold  with  respect  to  the  creation  of  any 
greater  interest  in  land.  If  a  man  should,  by  indenture,  lease 
lands,  in  which  he  has  no  legal  interest,  for  a  term  of  years,  both 
lessor  and  lessee  will  be  estopped  during  the  term,  or  forbidden 
to  deny  the  validity  of  the  lease.  This  might  have  been  exj)ected. 
But  the  law  goes  further,  and  holds  that  if  the  lessor  should,  at 
any  time,  during  the  lease,  acquire  the  lands  he  Jias  so  let,  the 
lease  which  before  operated  only  b}'  estoppel,  now  takes  effect 
out  of  the  newly  acquired  estate  of  the  lessor,  and  becomes  for 
all  purposes  a  regular  estate  for  a  term  of  years.' 

§  704.  We  have  already  seen  that  no  man  is  permitted  to 
allege  or  prove  anything  in  contradiction  or  contravention  of  his 
own  deed.  When,  therefore,  a  man  grants  a  lease  under  seal  he 
is  not  permitted  to  avoid  his  own  grant  by  proving  that  he  had 
no  interest  in  the  demised  premises,*  unless  he  is  a  trustee  for  the 

'  Jackson    v.    Murraj',    12    Johns.  -  Co.  Lit.  47,  b. 

201;    Sinclair    v.    Jackson,    8    Cow.  » j-j.i^v]iy'g  (j^g^   4  Qo^g   54.   Weale 

543;    Co.  Lit.  476;  2  Prest.  Abst.  410;  v.   Lower,    Pollexfen,    60;    Smith  v. 

Shep.   Touch.    Presl.  53;   Burt.   Ileal  Low,    1    Atkyns,    490;    Trevivan    v. 

Prop.    850;     Wms.    Keal   Prop.    229;  Lawrence,  1  Salk.  226;  Webb  v.  Aus- 

Hermlttage  V.  Tomkins,  ILd.  Raynid.  tin,  7  Man.    &  G.  701;  McKensie  v. 

729;  Jackson   v.   Bull,  1  Johns.   Cas.  Lexington,  4  Dana,  129. 

90.  ■»  Fairtitle  v.  Gilbert.  2  T.  R.  169. 


Leases  by  Estoppel.  837 

public,  deriving  Lis  authority  from  some  legislative  enactment. 
As  between  him  and  his  lessee  the  lease  operates  by  way  of  estop- 
pel. "  And  if  one  makes  a  lease  for  years  by  indenture,  of  lands 
wherein  he  hath  no  title  at  the  time  sucli  lease  is  made,  and 
afterwards  purchases  the  lands  demised,  it  makes  his  lease  as 
good  and. unavoidable  as  if  he  had  been  in  the  actual  possession 
and  seizin  thereof  at  the  time  of  making  the  lease  ;  because  he, 
having  by  indenture  expressly  demised  those  lands,  is,  by  his 
own  acts,  estopped,  and  concluded  to  say  he  did  not  demise  them  ; 
and  if  he  cannot  aver  that  he  did  not  demise  them,  then  there 
is  nothing  to  take  off  or  impeach  the  validity  of  the  indenture, 
which  expressly  affirms  that  he  did  demise  them,  and  conse- 
quently the  lessee  may  take  advantage  thereof  whenever  the 
lessor  comes  to  such  an  estate  in  those  lands  as  is  capable  to  sus- 
tain and  support  that  lease,  and  when  the  estoppel  becomes  good 
in  point  of  interest,  the  heir  of  the  lessor,  and  all  persons  claim- 
ing under  the  lessor  by  assignment  or  otherwise,  are  bound  by 
the  estoppel.'  A  tenant  cannot,  during  the  term  of  a  lease,  hold 
adverse  possession  against  the  landlord  by  the  mere  intention  so 
to  hold,  and  without  the  doing  of  some  act  which  would  amount 
to  adverse  possession  by  a  tenant  who  enters  under  a  lease."  And 
if  he  is  evicted  and  deprived  of  the  *ase  and  enjoyment  of  the 
demised  premises  by  some  person  claiming  by  title  paramount, 
eviction  is  pleadaljle  in  bar  to  a  demand  of  the  rent  ;  but  it  must 
be  an  actual,  and  not  a  mere  constructive  eviction.^ 

§  705.  If  the  lessor  at  the  time  of  leasing  has  no  vested  inter- 
est in  the  land,  buc  subsequently  acquires  such  interest,  it  passes 
to  the  lessee  or  his  assigns  from  the  latter  period  by  estoppel. 
This  is  peculiarly  applicable  where  the  lessor  has  a  future  or 
contingent  interest  as  an  heir  apparent,  or  claims  under  a  con- 
tingent remainder  or  executory  devise;  but  not  where  any 
actual  interest,  however  snniH,  passes  by  the  lease.  Adverse 
possession  cannot  originate  while  the  party  actually  occupies 
under  a  lease  from  the  owner.*     So  a  tenant  under  a  lease  from 

'  Trevivan  v.  Lawrence,  1  Salk.276;         2  Abbey  v.  Yvillard,  48  Cal.  614. 
Goodlittle  v.  Morse,  8  T.  U.  371;  Doe         »  Delaney  v.  Fox,  2  C.  B.  K  S.  7G8. 
V.  Thompson,  9  Q.  B.  1043.  "  Coining  v.    Troy,   34  Barb.  269; 

Winterink  v.  Maynard,  47  Iowa,  36G. 


838  The   Law  of  Estoppel. 

one  having  possession  and  control  of  the  premises,  but  no  title 
to  them,  wliich  contains  a  clause  that,  in  case  the  lessors  should 
cease  to  control  or  own  the  property  (no  rent  should  be  paid, 
unless  their  successors  should  in  writing  confirm  the  lease),  by 
hokling  over  and  paying  rent  to  the  successive  assignees  of  the 
owner,  is  estopped  from  denying  that  they  are  assignees  of  the 
original  lessor,  and  continues  bound  to  pay  rent  to  them  in  that 
o-luiracter,  or  as  having  by  the  instruments  of  confirmation  become 
new  lessors.'  So  A.  being  a  mortg;igor  in  possession  in  1848, 
demised  to  B.,  the  defendant,  for  seven  years,  and  B.  covenanted 
to  repair  in  1854.  A.  sold  the  equity  of  redemption  to  C,  C. 
sued  B.  on  the  covenant.  B.  pleaded  that  A.  did  not  assign  to 
C,  nor  had  he  any  reversion  at  the  time  of  making  the  lease; 
nor  did  an)'  reversion  come  to  C  B.  was  estopped  from  deny- 
ing that  A.  had  such  a  legal  estate  as  would  warrant  the  lease, 
and  as  no  other  legal  estate  m-ouUI  warrant  the  lease,  and  as  no 
otiier  legal  estate  or  interest  M'as  shown  to  have  been  in  A.,  it 
must  be  taken  against  B.  by  estoppel  that  A.  had  an  estate  in 
fee.' 

§  706.  Under  a  lease  whicli  contains  an  express  covenant 
on  the  part  of  the  lessee. to  pay  the  rent,  he  continues  liable 
therefor  during  the  wliole  term  unless  released  by  the  lessor. 
The  fact  that  he  has  assigned  the  lease,  and  that  the  lessee  has 
accepted  rent  from  his  assignee,  will  not  relieve  him  from  his 
obligation.^  An  express  covenant  by  an  assignee  of  a  lease  who 
receives  possession  of  the  premises  before  any  portion  of  the 
rent  becomes  due,  "  to  take  such  lease  subject  to  the  terms  of  the 
same,  agreeing  to  pay  rent  at  the  tiuies  specified  therein,"  binds 
him  to  pay  rent  for  the  entire  term  which  by  the  lease  was  to 
become  due  after  he  took  possession,  and  not  merely  the  rent 
for  the  time  that  he  might  occupy  the  premises,  and  if  the 
assignor  is  obliged  to  pay  any  part  thereof  ho  can  recover  it  from 
the  assignee.  By  the  genei'al  principles  of  law,  lie  takes  it  sub- 
ject to  all  the  equities  to  which  the  original  party  is  subject,  and 
must  perform  all  covenants  which  are  annexed  to  the  estate  and 

'  WLalin  v.  White,    25  N.  Y.  362.      742. 

*  Cuthberston  v.  Irviug,  6  II.  &  N.  ^  ]\Iartineau  v.  Steele,   14  Wis.  272; 

Winterink  v.  Mayuard,  47  Iowa,  366. 


Leases  by  Estoppel.  839 

run  with  the  land,  without  special  agreement  on  his  part  to  do 
60.  The  payment  of  rent  being  such  a  covenant,  the  assignee  by 
accepting  possession  makes  himself  liable  therefor  though  not 
named.  A  person  who  accepts  a  lease,  knowing  that  other 
parties  are  then  in  actual  possession  of  the  premises  under  an 
unexpired  lease,  and  after  an  ineffectual  attempt  to  oust  such 
parties,  assigns  his  lease  to  them,  he  is  estopped  in  an  action  for 
rtnt  from  setting  up  as  a  defense  that  he  never  was  in  possession  ;' 
possession  by  his  assignees  is  equivalent  to  possession  in  himself. 

§  707.  When  a  question  arises  on  the  covenants  contained  in 
a  lease,  the  peculiar  estoppel  which  exists  between  landlord  and 
tenant  will  preclude  a  denial  of  the  title  of  the  lessor,  not  only 
as  between  the  original  parties,  but  when  third  persons  are  in 
question."  And  Avhile  the  lessee  remains  in  possession  under  the 
lease,  he  cannot  set  up  any  defense  in  the  nature  of  a  plea  of  nil 
hah uit  in  te)ie))ie?itis  ^g&iust  the  lessor  or  those  claiming  under 
him  by  assignment,  who  have  as  much  right  to  the  benefit  of  the 
estoppel  as  if  they  were  parties  to  the  letting,  and  not  merely 
assigns.  The  estoppel  of  a  lease  grows  out  of  an  implied  con- 
tract that  the  lessor  shall  be  bound  until  actually  or  constructively 
evicted,  as  if  the  lessor  had  title  whether  he  had  it  or  not.  On 
the  faith  of  which  the  landlord  gives  and  the  tenant  obtains  pos- 
session of  the  land  or  estate  by  estoppel.  After  the  acquisition 
of  the  estate  by  the  landlord  or  lessor  it  becomes  an  estate  in 
intercM",  and  iho  parties  and  their  assigns  are  in  the  same  position 
as  if  it  had  been  ab  initio  an  estate  in  interest.  Where  a  lessee  of 
land  being  also' a  tenant  in  common  with  others  of  the  reversion, 
files  a  petition  in  partition,  setting  forth  the  title  of  the  tenants 
as  a  present  estate  in  fee,withoiu  nouohig  the  lease,  he  is  estopped 
from  afterwards  setting  up  his  rights  as  lessee  against  a  purchaser 
under  the  award  in  partition,^ 

§  708.  A  lease  by  indenture  by  a  person  having  no  estate 
whatever,  as  an  heir  apparent,  by  a  party  claiming  under  an 
executory  devise,  or  contingent  remainder,  or  by  a  person  having 

'  Bailey  v.  Wells,  8  Wis.  141.  &  W.  337;  Veale  v.  Warner,    1   Wm. 

*  Pillmer  v.  Ekins,  3  Ld.  Raymond,      Saimd.   328;    Sullivan    v.    Stradling 
1550;  Goulds  worth  v.  Knigtit,  11  M.      2  Wiis.  203. 

3  Norton  v.  Autland,l8  Ohio, St.  383 


840  The  Law  of  Estoppel. 

a  wrongful  estate  only  in  the  premises,  would  operate  by  way  of 
estoppel  and  conclusive  ngainst  liiuj  on  liis  obtaining  a  vested  or 
rightful  interest,  whether  l)y  purchase  or  descent.  A  mortgagor 
Is  similarlj'  circumstanced,  and  will  be  precluded  by  estoppel 
from  claiming  the  land  after  redemption  in  opposition  to  his 
own  lease.  So,  if  one  having  no  interest  in  the  premises,  by 
indenture  make  a  lease  for  years  to  B.,  reserving  a  rent,  and 
afterwards  by  indenture  demise  the  same  land  to  C.  for  forty 
years,  C.  has  the  rent  by  the  same  means  by  which  he  has  the 
reversion, — i.  e.  by  estoppel.  If  a  party  lease  binds  in  which  he 
has  no  estate,  and  afterwards  acquire  an  estate,  the  lease  which 
before  operated  by  estoppel  only,  becomes  a  lease  in  interest,  and 
the  relation  of  landlord  and  tenant  will  then  exist  as  perfectly  as 
if  the  lessor  had  been  actually  seized  of  the  land  at  the  time 
when  the  lease  was  made.'  It  is,  however,  in  all  cases  requisite 
that  the  premises  forming  the  subject  of  demise  be  particularly 
specified  or  referred  to,  for  a  demise  by  A.  of  all  his  lands  in 
Dale,  not  being  at  the  time  owner  of  any  lands  there,  to  B.  for 
years,  will  fail,  on  account  of  its  generality,  to  create  an  estoppel 
against  him,  on  his  subsequent  acquisition  of  an  estate  in  Dale. 

§  709.  It  is  a  rule  that  a  lease  shall  not  work  by  way  of 
estoppel  when  it  may  pass  an  interest.  One  of  the  rules  con- 
nected with  this  doctrine  requires  every  estoppel  to  be  reciprocal, 
and  binding  on  both  parties;  hence,  a  stranger  can  neither  take 
advantage  of,  nor  be  bound  b}',  an  estoppel.  Infants  also,  and 
married  women,  on  account  of  their  legal  disabilities,  and  persons 
contracting  with  them  are  exempt,  for  want  of  mutuality  from 
the  operation  of  the  doctrine ;  and  accordingly,  if  one  takes  a 
lease  by  indenture  of  his  own  land  from  an  infant  ov  feme  covert, 
he  is  not  bound  by  estoppel  from  disputing  the.  demise.  The 
rule  wliich  I'equircs  reciprocity  in  cases  of  estoppel  obviously 
involves  the  necessity  for  a  lease  by  indenture  ;  for,  according  to 
Littleton,  Coke,  and  other  authorities,  if  a  lease  be  made  by  deed 
poll,  the  lessee  is  not  estopped  to  say  that  the  lessor  had  nothing 
at  the    time   of   the  lease  made ;  and  the    reason    why    a   deed 

•  Cuthbertson  v.  Irving,  4  II.  &  N.  v.  Austin,  8  Scott  N.  R.  419;  Par- 
743:  Blake  v.  Foster,  8  T.  K.  487;  getter  v.  Harris,  7  Q.  B.  708;  Sturgeon 
Stokes  V.  Russell,  3  T.  R.  0T8;  Webb      v.  Wingtield,  15  M.  &  W.  324. 


Leases  by  Estoppel.  841 

indented  will,  but  a  deed  poll  will  not,  conclude  the  taker,  is, 
because  the  hitter  is  the  deed  of  the  feoffer,  donor,  and  lessor 
only,  while  the  former  is  the  deed  of  both  parties,  and  concludes, 
therefore,  the  taker  as  well  as  the  giver.  Upon  the  same  prin- 
ciple, it  should  seem,  that,  to  inure  by  way  of  estoppel,  the 
indenture  must  be  executed  by  both  lessor  and  lessee.  An 
indenture,  executed  by  the  one  and  not  by  the  other,  being 
equivalent  to  a  deed-poll ;  though,  for  this  purpose,  a  lease 
executed  by  the  lessor  only,  and  a  counterpart  by  the  lessee,  are 
considered  as  one  indenture.  If  an  interest  (which  it  appears 
signihes  a  legal  interest)  passes,  the  lease  cannot  operate  by  way 
of  estoppel ;  for  one  deed  cannot  so  inure  to  two  intents.  There- 
fore, if  a  tenant  ^WT'  autre  vie  leases  for  twenty-one  years,  and, 
after  having  purchased  the  fee,  the  cestui  que  vie  dies,  the  lessor 
may  nvoid  his  lease  ;  because  an  interest  passed  for  the  life  of  the 
cestui  que  vie.  So,  if  x\.,  tenant  for  life,  and  B.,  remainderman 
in  fee,  join  in  a  lease,  tiie  lessee  cannot,  in  the  lifetime  of  A., 
recover  in  ejectment  declaring  upon  the  demise  of  both;  for  the 
lease  during  A.'s  life  is  his  demise,  and  must  be  so  pleaded  ;  nor 
can  the  deed  work  an  estoppel,  on  account  of  the  interest  that 
passed  to  the  lessor.  It  inures  by  M^ay  of  confirmation  from  the 
other,  and  not  by  way  of  estoppel.  Tenants  in  common  are  con- 
sidered as  holding  several  freeholds,  or  other  distinct  interests, 
according  to  the  quantity  of  their  estate.  Each  tenant  in  com- 
mon may  grant  his  undivided  share  for  any  interest  commen- 
surate with  his  own,  either  to  a  stranger  or  to  his  companion,  or 
two,  or  three,  or  all,  of  several  tenants  in  common  may  concur  in 
one  lease,  -udiich  will  operate  as  a  distinct  demise  of  each  tenant 
of  his  part  and  not  as  a  joint  demise  of  all.  Tliere  is  no  estoppel 
in  such  a  case,  because  an  interest  passes  from  each  lessor. 

§  710.  An  indented  deed  works  an  estoppel,  that  is,  "  doth 
bar  and  conclude  either  party,  his  heirs,  and  all  persons  claiming 
under  or  through  him,  except  heirs  in  tail,  &c.,  to  say  or 
accept  against  anything  contained  in  it."  In  case  of  a  lease  by 
indenture,  '•  both  parties  are  estopped  to  say  the  lessor  had 
nothing  in  the  land  at  the  time  of  the  lease  made,  so  that,  if  the 
lessor  happen  to  have  tlie  land  thereafter  by  purchase  or  descent, 
the  lessee  may,  during  the  term,  enter  upon  him  by  way  of  con- 


842  The  Law  of  Estoppel. 

elusion."  If  the  lease  however,  pass  atiy  interest  it  will  not 
operate  beyond  that  as  an  estoppel.  On  the  other  hand,  a  deed 
poll  binds  only  feoffer,  lessor,  &c.,  and  it  would  seem  that  a 
lessor  by  a  deed  poll  would  be  as. much  bound  on  his  part  as  if 
the  instrun)ent  were  an  indenture.'  But  if  one  is  induced  by 
fraud  to  accept  an  indenture  of  land,  he  may,  as  tenant,  deny 
that  the  other  party  has  any  title."  But,  if  a  man  take  a  lease 
for  years,  by  indenture,  of  his  own  land,  he  would,  during  tiie 
term,  be  estopped  to  deny  the  lessor's  title,  the  estoppel  continues 
during  the  term,  and  determines  with  the  lease."  So  where  a 
person  conveyed  land  to  his  wife  through  the  medium  of  a 
trustee,  claiming  that  the  title  was  to  be  held  in  trust  for  him, 
and  afterwards  accepted  a  life  lease  of  a  portion  of  it,  and  subse- 
quently brought  an  action  to  obtain  a  reconveyance  of  the  land, 
held,  that  the  acceptance  of  the  lease  was  a  recognition  of  the 
wife's  title,  Avhich  estopped  the  husband  from  setting  up  any 
claim  to  the  residue  of  the  premises.*  And  whether  the  deed  be 
indented  or  poll  in  form,  if  it  contains  reciprocal  obligations 
from  one  to  another  and  it  is  executed  by  both,  it  is  binding  on 
both  parties.' 

§  711.  An  estoppel  is  not  wholly  confined  to  the  parties  to  the 
lease,  but,  being  annexed  to  the  estate,  runs  with  the  land,  and  is 
binding  alike  on  all  persons  claiming  under  them.  The  heir  of 
the  reversioner,  being  privy  in  blood,  and  taking  the  estate 
subject  to  the  burdens  under  which  his  ancestor  enjoyed  it,  is 
bound  by  the  estoppel,  where  that  ancestor,  having  no  estate  in 

*  Hermitage    v.    Tompkins,    1   Ld.  v.  Mitchell,  21  Ark.  14.j;  Courvoisier 

Eaym.    729;  Com.    Dig.  Estoppel,  E.  v.  Boiivier,  3  Neb.  55 ;  Neave  v.  Moss, 

8  ;  Jackson  v.  Muriay,  12  Johns.  201;  1  Bing.  N.  C.  380.  Langfonl  v.  Selmes, 

Co.  Lit.  476;  Webb  v.  Austin,  7  M.  &  3  K.   &  J.   220;  Weld  v.  Baxter,  11 

G.  724;  Beaupland  v.  McKecn,  28  Pa.  E.Kchq.  618;  Poole  v.  Whitt,  15  M.  & 

St.  124;  Cuthberstou  v.   Irving.  4   H.  W.  571;  Delaney  v.  Fox,  2   C.  B.  (N. 

N.  742;  Jackson  V.  Bull,  1  Johns.  90;  S.)768;  Downes   v.  Cooper,  2   Q.  B. 

Shep.  Touch.  53.  256;  Clark  v.  Adie,  2  App.  Cas.  435; 

"Aldcrson  V.  Miller,  15   Gratt.  279;  Style   v.  Herring,   Cro.  Jack.  1;  Lon- 

Jackson  v.  Ayers,  14  Johns.  224.  don's  Case,  And.  128;  Webb  v.    Aus- 

^  Rawlyns'  Case,  4]i(.p.  54;  Doc  v.  tin,  7  M.  ifcG.  724. 

Seatou,  2  Cromp.  31.  ct  R.  730;  Doe  v,  <  Ccnirvoirsier   v.    Bouvier,   3  Neb. 

Barton,  11  A.  &  E.  307;  Kinsworthy  55. 

6  Shep.  Toucli.  53. 


Leases  by  Estoppel.  843 

the  premises,  or  only  a  contingent  remainder,  made  a  lease  by 
indenture,  and  afterwards  purchased  the  fee  of  the  laud  demised, 
and  died.'  The  heir,  liowever,  will  not  be  bonnd,  unless  lie 
claim  the  laud  from  him  who  created  the  estoppel ;  and,  there- 
fore, if  the  heir  purchase  the  reversion  himself,  or  if  it  devolve 
upon  him  by  descent  from  another  ancestor,  he  would  not  be 
bound.'  Nor  will  he  be  bound,  unless  the  estoppel  would  have 
operated  upon  the  inheritance  in  the  hands  of  his  ancestor ;  and, 
consequently  if  tenant  for  life,  lease  for  years,  and  afterwards 
purchase  the  reversion  in  fee,  and  die  within  the  term,  his  heir 
may  enter  ;  for,  a  freehold  being  a  greater  estate  than  any  term 
of  years,  the  decease  of  the  tenant  for  life,  out  of  whose  estate 
the  lessee's  interest  arose,  is  the  regular  period  appointed  by  law 
for  the  determination  of  the  lease.*  Privies  in  estate  are  also 
bound.  Thus,  if  A.  makes  a  lease  by  indenture  of  D.,  to  which 
he  has  no  title,  and  afterwards,  becoming  its  owner  in  fee,  dispose 
of  it  to  B.,  the  latter  will  be  estopped  from  disputing  the  lease." 
So,  if  a  mortgagor  grant  a  lease,  and  after  performance  of  the 
condition  in  the  mortgage  makes  a  feoffment  in  fee,  the  feoffee 
will  hold  subject  to  the  estoppel.*  So,  the  lessor's  assignees  may 
take  advantage  of  estoppels,  even  though  he  become  bankrupt. 
Privies  in  law,  as  the  lord  by  escheat,  tenant  by  the  curtesy, 
tenant  in  dower,  and  others  who  come  under  by  act  in  law,  or  in 
the _post,  are  also  bound  by,  and  compete'nt  to  take  advantage  of 
estoppels.  But  if  one  joint  tenant  of  land  take  a  lease  of  the 
same  land,  by  indenture  of  a  stranger,  and  clit-,  the  survivor  is 
not  bound  by  the  conclusion  ;  because  he  claims  above,  and  not 
under  it. 

§  712.  Upon  the  execution  of  the  lease  there  is  created,  in  con- 
templation of  law,  a  reversion  in  fee  simple  by  estoppel  in  the 
lessor,  which  passes  by  descent  to  his  heir,  and  by  purchase  to  an 

'  Yick  V.  Edwards,  3  P.   Williams,  Edwards  v.  Rogers,  W.   Jones,   460. 

372;  Doe  V.  Martin,  8  B.   &  C.    527;  ^  Treports'  Case,  6  Co.  15;  Blake  v. 

Da%ies  v.    Biisii     1   McC.  &  Y.  58;  Foster,  8  T.    it.   47;    Carvick  v.  Bla- 

Haj-ue  V.  Maltliy  3  T.  R.  441;   Webb  grave,  1  B.  &B.  531. 

V.  Austin,  7  M.  &   G.  701;  Weale  v.  *  Trevivan  v.  Lawrence,  Holt.  383; 

Lower,  PoUexfe.  54.  Webb  v.  Austin,  7  M.  &  G.  701. 

'Com.     Dig.     375,    Estoppel     c.  ;  *  j;(i^yai.(l  y   ]\Iellhallum,  Marsh.  64; 

GoudtiLle   V.    Morse,    3    T.   R.   371;  Rawlyns' Case,  4  Coke,  53. 


844  The  Law  of  Estoppel. 

assignee  or  devisee.  So  long,  therefore,  as  a  lessee  enjoys  every 
thing  which  his  lease  purports  to  grant,  lie  has  no  concern  with 
the  title  of  the  lessor,  or  the  heir  or  assignee  of  the  lessor.'  The 
lessee,  by  executing  the  lease,  and  parties  claiming  under  him,- 
are  also  estopped  from  impeaching  or  disputing  his  landlord's 
title  ;  and  the  rule  is  founded  in  good  sense,  policy,  and  justice  ; 
for  if  it  were  otherwise,  the  tenant  might  enjoy  the  property 
demised,  and  afterwards  defeat  the  lessor  of  his  remedy  for  rent.'^ 
Thus,  he  cannot  plead  that  there  was  no  demise.  So,  if  an  under- 
lease, executed  by  the  underlessee,  contain  a  covenant  by  him  to 
pay  the  rent  reserved  by  the  original  indenture  of  the  lease  ;  or 
if  tho  original  lease  be  recited  In  the  underlease  ;  in  either  case 
the  court  will  estop  him  from  denying  the  existence  of  such 
lease.  In  the  like  manner,  the  assignee  of  a  lease  is  concluded  by 
the  deed  which  estops  his  assignor. 

§  713.  An  estoppel  by  indenture  will  not  bar  the  lessee 
beyond  the  duration  of  the  interest  derived  by  him  under  the 
lease.  Thus,  if  "a  man  take  a  lease  for  years,  by  deed  indented  of 
his  own  land,  it  is  no  estoppel  bej'ond  the  term,  at  the  end  of 
Avhich  the  lessor  may  enter  and  occupy  the  land,  for  by  the 
termination  of  the  term  the  estoppel  is  also  determined.  But  if 
a  party  take  an  interest  in  his  own  land  from  a  stranger  by  matter 
of  record,  and  not  a  mere  indenture,  the  fee  will  be  bound  and 
the  taker  estopped  forever. 

§  714.  Whether  an  assignment  be  absolute  or  conditional,  if 
the  assignee  enters  under  it  and  occupies  the  estate,  he  can  neither 
deny  the  validity  of  the  assignment  in  an  action  bj'  the  lessor  for 
rent,  nor  can  he  escape  liability  for  the  same,  by  abandoning  tiie 
premises  before  the  expiration  of  the  lease.'  Privies  are  entitled 
to  the  benefit  of  an  estoppel  as  well  as  parties,  and  an  assignment 
by  a  lessor  creates  a  sufficient  privity  m  the  assignee  to  entitle 
the  latter  to  claim  the  benefit  of  the  implied  admission  of  the 
tenant,  that  the  landlord  has  sufficient  estate  to   make  the  lease, 

iCuthberstoa  v.  Irving,  4  H.  &  N.  204;  Wood  v.  Day,  7  Taunt.  646. 

758;  Tievivan   v.  Lawrence,   :1    Salk.  ^  Blake  v.  Sanderson,  1  Gray,  33.3; 

276;  Goodtitle  v.  Morse,  3  T.  I{.  871;  Carter  v.  Hammett,  18  Barb.  608;   S. 

Doe  V.  Thompson,  9  Q.  B.  104:3.  C,  12  Barb.  252;  Dorrance  v.  Jones, 

*  Carpenter  v.  Thompson,  3  N.  H.  27  Ala.  630. 


Leases  by  Estoppel.  845 

however  defective  bis  title  may  be  for  otlier  purposes.  A  lessee 
by  deed  indented  was  held  to  be  estopped  from  denying  the  tide 
of  the  assignee,  though  the  effect  appeared  on  the  face  of  the 
assignment  and  was  admittea  by  the  case  stated/  The  decision 
shows  that  a  reversion  may  arise  by  estoppel,  even  when  the 
pleadings  disclose  that  it  does  not  exist  in  fact,  and  is  founded 
solely  on  the  contract  of  letting.  The  court  said  if  the  want  of 
title  had  appeared  in  the  lease,  it  might  have  been  taken 
advantage  of  by  the  defendant.  It  is  difficult  to  belie'/e  that  the 
landlord  can  be  placed  in  a  worse  position  by  setting  the  whole 
matter  fairly  before  the  tenant  in  the  instrument  by  which  the 
land  is  deaiised.  If  a  tenant  chooses  to  enter  into  an  absolute 
engngement  to  pay  rent,  in  full  knowledge  of  all  circumstances, 
he  is  estopped  by  his  agreements  from  claiming  to  be  released 
while  they  remain  unchanged.  The  material  question  in  such 
cases,  is  not  whether  the  landlord's  title  is  good,  but  v/hether  the 
tenant  has  sustained  any  injury  by  reason  of  its  being  bad, 
because  if  he  has  not,  and  still  retain  possession  of  the  land,  the 
lease  should  not  only  be  binding  between  the  parties,  but  in  favor 
of  a  subsequent  purchaser  from  the  lessor,  "  So  long,''  said  Baron 
Martin,  in  Cuthbertson  v.  Irving,  "as  a  lessee  enjoys  everything 
which  his  lease  purports  to  grant,  how  does  it  concern  him  what 
the  title  of  the  lessor  or  of  the  heir,  or  of  the  assignee  of  the 
lessor  really  is'^  All  that  is  required  of  him,  is  that  having 
received  the  full  consideration  of  the  contract,  he  should  perform 
it."  And  this  is  equally  true  when  the  lack  of  title  appears  on 
the  face  of  the  lease,  and  how  that  fact  can  change  the  matter  or 
exonerate  the  tenant  is  a  matter  that  it  is  difficult  to  under- 
stand. Estoppels  do  not  arise  to  shut  out  the  truth  ;  because 
if  the  truth  was  shown  it  would  not  affect  the  justice  of  the 
cause.^ 

§  715.  The  execution  of  an  indenture  of  lease  creates  a  rever- 
sion by  estoppel  in  the  lessor  as  against  the  lessee,  according  to 
the  terms  of  the  deed.  If  the  lessor's  title  is  recited  in  the 
deed,  the  lessee,  by  executing  the  deed,  is  estopped  from  contra- 
dicting the  recital.     If  the  lessor's  title  does  not  appear  in  the 

'  Cuthbereton  v.    Irviug,  4  Ilurlst.  ^  Jackson  v.    Waldron,    13  Wend. 

&K  742;  6  Id.  135.  178. 


846  The  Law  of  Estoppel. 

deed,  the  lessee  is  estopped  from  alleging  that  the  lessor  had  not 
an  estate  in  the  premises,  sufficient  to  grant  the  lease.  The 
reversion  thus  created  by  estoppel  is  assignable,  and  will  carry 
with  it  the  covenants  in  the  lease  that  run  with  the  land.'  The 
reversion  by  estoppel  would  presumptively  be  a  fee  simple,  pass- 
ing by  devise  or  descent ;  but  the  lessee  might  rebut  this  pre- 
sumption by  evidence  consistent  with  the  estoppel,  as  that  the 
lessor  had  in  fact  an  estate  for  life  or  for  j-ears,  being  sufficient 
for  the  admitted  demise  ;  he  is  only  precluded  from  alleging  that 
his  lessor  had  no  estate,  or  no  sufficient  estate  to  make  the  lease.* 
Accordingly,  where  it  appeared  upon  the  recitals  in  a  lease  that 
the  lessor  had  mortgaged  the  legal  estate  and  retained  onl)'  the 
equit}'  of  redemption,  it  was  held  that  there  was  no  legal  reversion 
by  estoppel  or  otherwise  in  the  lessor,  and  the  covenants  made  to 
him  were  exclusively  personal.^  Where  both  the  mortgagor  and 
the  mortgagee  joined  in  leasing,  and  the  covenants  were  made 
with  the  mortgagor  only,  it  was  held  that  the  mortgagee  could 
not  sue  at  law,  because  a  stranger  to  the  covenants.^  Where  an 
estate  by  estoppel  is  fed  by  a  subsequent  interest,  it  becomes,  as 
between  the  parties,  equivalent  to  an  estate  in  interest  ah  initio  j 
the  reversion  in  such  case  carries  the  covenants  by  assignment, 
and  the  assignee  of  the  reversion  on  the  one  hand,  and  the 
assignee  of  the  lease  on  the  other,  may  sue  upon  them,  as  if  the 
lessor  had  the  estate  at  the  time  of  making  the  lease. ^ 

§  716.  The  Mords  "  grant  and  demise,"  in  an  indenture  of 
lease,  are  equivalent  to  covenants  of  warranty  and  of  quiet  enjoy- 
ment." If  the  lessor  only,  seals,  and  not  the  lessee,  yet  it  is  as 
good  as  if  both  had  sealed.  This  works  an  estoppel,  that  is,  it 
does  bar  and  conclude  either  party  to  say  or  except  against 
anything  contained  in  it.'  A  lease  which  one  executes  as 
agent  of  the  lessor  estops  him  from  setting  up  any  claim  to  the 


'  Gouldsworth  v.  Knight,  11   M.  «&  «  Webb  v.  Russell,  3  T.  R.  393. 

W.  o37;  Cutliberstori  v.    Irving,  6  H.  MVebb  v.    Austin,   8  Scott  N.  R. 

&.  ISi.  135;  29  L.  J.  Ex.  485.  419;  Sturgeon  v.  Wingfield,   15  M.  & 

"^  Weld  V.  Baxter,  1  H  &  N.  568;  2(5  W.  224. 

L.  J.  Ex.  112.  «  Barney  v.  Keith,  4  Wend.  503. 

3  Pargeter  v.  Harris,  7  Q.  B.  708.  '  Shep.  Touch.  §  53. 


Leases  by  Estoppel.  847 

land  inconsistent  with  the  lease,'  and  the  lessee,  where  no  prin- 
cipal is  disclosed,  cannot  controvert  the  lessor's  title." 

§  717.  Where  a  party  voluntarily  enters  into  a  contract  for  a 
lease  of  real  estate,  goes  into  possession  under  it  and  peaceably 
occupies  the  promises  according  to  its  terms,  on  the  plainest  prin- 
ciples of  justice,  he  is  estopped  from  disputing  its  validity.'  In  a 
lease  for  life,  a  recital  that  the  lessee  is  in  possession  at  the  time 
of  its  execution,  estops  the  lessor  from  denying  that  such  was  the 
case,  thus  rendering  the  instrument  valid  as  a  release,  while  it 
would  have  failed  otherwise  from  the  want  of  livery  of  seizin.* 
All  parties  claiming  under  deeds  of  lease  and  release  are  estopped 
by  tlie  recital  of  the  lease,  from  denying  the  existence  of  the 
former,  or  that  possession  under  it  is  necessary  to  give  the  latter 
its  iiitended  operation.  If  a  lease  contains  a  covenant  or  recital 
that  the  legal  title  is  outstanding,  but  that  the  lessee  agrees  not 
to  take  advantage  of  the  defect,  and  is  to  be  liable  in  all  respects 
as  if  the  lessor  were  seized  of  an  estate  in  fee.  it  is  bindine:  on 
both  parties  and  estops  the  tenant  from  pleading  nil  habuit  in 
tenementis  to  an  action  brought  by  the  lessor.'* 

§  718.  If  the  recital  of  a  lease  in  a  deed  of  release  is  admitted 
to  be  good  evidence  of  the  execution  of  the  lease,  it  must  be  good 
evidence  of  the  very  lease  stated  in  the  recital,  and  of  the  con- 
tents, so  far  as  they  are  stated  therein,  for  they  constitute  its 
identity."  If  the  lessor  in  ejectment  has  released  his  interest  to 
the  defendant,  the  plaintiff,  by  such  release,  is  estopped  from 
claiming  any  title.'  When  the  estoppel  is  founded  on  a  grant  or 
contract,  it  will  not  endure  after  the  instrument  has  ceased  to 
operate,  or  when  the  purpose  for  which  it  has  been  executed  has 
been  attained.  A  lease  by  deed  indented  will  not  estop  the  lessee 
from  denying  the  landlord's  title,  after  the  expiration  of  tlie  term. 
But  when   possession   is  obtained   by  the  lessee  on  faith  of  the 

'  Blanchard    v.    Tyler,     13     Mich.  99  Mass.  13;  Doe  v.  Mills,  3  A.  &  E. 

339.  17;   Fleming  v.    Gooding.    10    Biug. 

s  Bedford  v.  Kelly,  Gl  Pa.  St.  491.  549. 

»  Grant    v.    White,    43    Mo.    385;  *  Rees  v.  Lloyd,  Wight,  139. 

Whalen  v.  White,  35  N.  Y.  463;   Bai-         ^  Carver  v.  Astor,  4  Pet.  1;  Crane  v. 

ley  V.  Kilburn,   10  Met.  176;  Hodges  Morris,  6  Pet.  598. 
V.  Shields,  18  B.  Mon.  838;  Lucas  v.  ^  Crane  v.  Morris,  6  Pet.  598. 

Brooks,  18  Wall.  430;  Miller  v.  Lang,  '  Jackson  v.  Foster,  13  John.  488. 


848  The  Laav  of  Estoppel. 

•' 
lease,  it  will  give  rise  to  an  estoppel  of  a  different  nature,  that 
will  endure  until  the  lessor  is  replaced  in  his  original  position.' 
While  a  lessee  may  rely  upon  a  want  of  mutuality  as  a  reason  why 
he  should  not  be  bound  by  a  lease  of  his  own  land  from  a  feme 
covert  to  which  he  has  put  his  seal,  if  his  possession  was  derived 
from  her  he  must  surrender  it  to  her  before  he  can  set  up  an 
adverse  title  or  deny  hers."  It  is  a  universal  and  well  settled  nile 
that  a  man  cannot  blow  hot  and  cold  in  the  same  proceeding,  by 
denying  auj-thing  which  he  has  required  his  antagonist  to  submit 
to  ;  under  such  circumstances,  the  rule  that  an  estoppel  must  be 
mutual  is  inflexible,  and  admits  of  no  exception. 

§  719.  The  application  of  estoppels  to  all  obligations,  ex  con- 
tractu, is  that  they  must  be  mutual,  that  neither  party  will  be 
bound  unless  the  estoppel  extends  to  both.  AVhere  the  tenant  is 
csto))ped  to  deny  the  landlord's  title,  the  landlord  cannot  allege 
that  he  had  nothing  in  the  land  at  the  time  of  the  demise  as  a 
reason  why  he  should  not  recover,  notwithstanding  an  assignment 
of  the  reversion,  while  when  the  lessee  is  at  liberty  to  plead  nil 
hahuit  in  tenementis,  the  lessor  will  be  equally  free.^  If  a  man 
take  a  lease  of  his  own  land  by  indenture,  from  ^  feme  covert^ 
the  mairied  woman  not  being  estopped  by  reason  of  her  disa- 
bility, the  lessee  will  be  equally  at  large."  The  rule,  that  the 
estoppel  must  be  mutual,  does  not  apply  in  general  to  unilateral 
instruments,  to  which  one  party  only  sets  his  seal,  for  the  reason 
that  the  estoppel  cannot  be  broader  than  the  deed,  and  a  grantor 
ma}'  be  estopped  although  there  is  no  estoppel  on  the  grantee.  A 
lease  by  deed  poll  or  even  by  indenture,  and  purporting  to  bind 
both  parties,  if  sealed  only  by  the  lessor,  did  not  estop  the  lessee 
from  denying  the  lessor's  title  at  common  law."  Although  the 
lessor  will  be  as  much  hound  by  the  solemnity  of  his  own  deedt 
as  if  it  had  been  executed  by  the  lessee. *  The  grantee  or  lessee 
in  a  deed  poll  is  not  in  general  estopped  from  gainsaying  any- 
thing mentioned  in  the  deed  ;  for  it  is  the  deed  of  the  lessor  or 


>  Sparrow    v.    Kiugman,    1   N.    Y.  Paigt4ter  v.  Harris,  7  Q.  B.  708. 
242.  *  Dempsey   v.    Tylee,    3   Duer,   73; 

■■'  James  v.   Langdou,   Croke  Eliz.  Coke  Lit.  552. 
37.  *  Co.  Litt.  47. 

3  Green  v.   James,  6  M.  &  W.  G56;         "  Bac.  Abdg.  Tit.  Lease. 


.   Leases  by  Estoppel.  849 

grantor  only  ;  yet  if  such  grantor  or  lessee  claims  title  under  the 
deed,  he  is  thereby  estopped  to  deny  the  title  of  the  grantor  or 
lessor,  but  he  is  not  always  estopped  by  the  recitals  in  anterior 
title  deeds. 

§  720.  Estoppels,  under  the  earlier  practice,  did  not  meet 
with  much  favor  from  the  authorities,  as  they  tended  to  shut  out 
the  truth  and  were  deemed  odious,  and  if  by  any  construction 
they  could  be  avoided  they  were  excluded.  There  is  no  estoppel 
where  an  interest  passes  by  the  lease,  though  the  interest  the 
lessor  purports  to  grant  is  really  greater  than  he  has  at  the  time 
of  making  the  lease  the  power  to  grant.  Thus,  where  a  lessor 
for  the  life  of  B.  makes  a  lease  for  years  and  then  purchases  the 
reversion  in  fee,  after  which  the  cestui  que  vie  dies,  the  lessor 
may  avoid  his  lease,  though  several  of  the  years  expressed  in  the 
lease  are  still  to  come,  for  he  may  confess  and  avoid  the  lease 
which  took  effect  in  point  of  interest,  and  determined  on  the 
death  of  "  B.'"  So,  if  two  join  in  a  lease,  and  only  one  has  any 
interest  'u  the  premises,  it  inures  by  way  of  confirmation  from 
the  other,  and  not  by  way  of  estoppel." 

§  721.  An  estoppel  cannot  operate  after  the  estate  of  the 
lessor  is  determined  ;  for  it  begins  by,  and,  therefore,  terminates 
with  the  lease.*  But  where  a  lease  for  years  cannot  take  effect 
immediately,  by  reason  of  a  prior  lease  of  the  same  premises,  the 
second  lease  operates  by  estoppel,  for  so  much  of  the  term  as 
may  be  left  after  the  determination  of  the  former,  by  way  of 
passing  an  interest.*  But  if  it  appears  from  recitals  in  a  lease, 
that  he  had  nothing  at  the  time  of  the  demise,  and  he  afterwards 
purchases  the  land,  it  does  not  inure  to  the  lessee  by  estoppel.^ 
He  is,  however,  estopped  from  contending  that  he  had  merely 
an  equitable  estate. when  he  granted  the  lease.  The  lessee  is 
not  estopped,  by  a  description  of  the  land  in  a  lease,  from  show 

1  Leceisterv.  Rohobotb,  4  Mass.  180;  Nev.  &  Per.  123;  Blake  v.  Foster,  8 
Co.  Lit.  47,  b. ;  Jackson  v.  Hoffman,  T.  R.  487;  Brereton  v.  Evans,  Cro. 
9  Cow.  271;  Anon.,  Ventr.  358.  Eliz.  700;  Brudrell  v.  Roberts,  3  Wils. 

2  Brereton  v.  Evans,  Cro.  Eliz.  143;  Jackson  v.  Ayres-,  14  Johns. 
700.  224. 

3  Neave  v.  Moss,  1  Bing.  N.  C.  360;  *  Skipwitli  v.  Green,  1  Stra.  GIO; 
Doe  V.  Skirrow.  7  Ad.  &  El.  157;  3  Oilman  v.  Hoare,  1  Salk.  275. 

*  Fairtitle  v.  Gilbert,  2  T.  R.  169. 

Vol.  L— 54 


b50  The  Law  of  Estoppel. 

ing  that  what  was  there  called  meadow  was  not,  in  point  of  fact, 
such.*  An  assignee,  also,  is  estopped  by  the  deed  which  estops 
.lis  assignor  ;'  and  by  executing  an  assignment,  in  which  the 
original  lease  is  recited,  he  is  precluded,  in  an  action  by  the 
assignor,  from  calling  upon  hira  to  prove  the  lease.^  But 
although  a  lessee  may  maintain  an  action  of  covenant  against  his 
lessor  on  a  lease  by  estoppel,^  the  same  privilege  does  not  extend 
to  his  assignee.^  An  estoppel,  however,  must  be  reciprocal  and 
mutual,  for,  as  the  whole  estate  is  created  by  estoppel,  both  par- 
ties must  be  bound  or  neither. 

§  722.  The  rule  requiring  reciprocity  in  cases  of  estoppel 
necessarily  requires  that  the  lease  shall  be  by  indenture  and  not 
by  deed  poll ;  for  both  the  lessor  and  lessee  must  be  bound  or 
neither.*  A  stranger  can  neither  be  bound  by  or  take  advantage 
of  an  estoppel,  it  being  confined  to  privies  in  blood  or  estate.' 
Possession  will  follow  ownership,  unless  there  is  an  adverse  pos- 
session. At  common  law,  no  interest  in  land  could  pass  frouj  a 
vendor  before  he  had  himself  obtained  livery  of  seizin  ;  but,  by 
force  of  the  statute  of  uses,  the  possession  was  transferred  to  the 
cestui  qui  use,  who  may  now,  therefore,  in  case  there  is  no 
adverse  possession,  make  a  lease  for  years,  without  actual  entry,* 
and,  as  a  general  rule,  if  there  is  a  reversion  in  the  lessor  at  the 
time  of  making  the  lease,  it  will  be  a  good  charge  upon  the 
reversion,  and  take  effect  in  interest  and  possession  if  the  rever- 
sion happens  to  be  reduced  into  possession  during  the  period 
limited  by  the  contract  for  the  enjoyment  of  the  land,  the  lessor 
being  estopped,  by  his  own  deed,  from  saying  that  he  did  not 
demise  the  premises.'  Where  a  covenant  runs  with  land,  the 
mere  occupation   of  it  for  a  particular  purpose  is  in  subordina- 


'  Taylor  v.  Nocdliara,  3  Taunt.  278;  Ante,  §  20;  Jackson  v.  Brinckerhoff,  2 

Baiwick  v.  Thompson,  7  T.  R.  488.  Johns.  Cas.  101;  Berlin  v.  Norwich,  10 

■•'  Nash  V.  Turner,  1  Esp.  217.  Johns.  229;   Braintree  v.  Highani,  17 

3  Style  V.  Hearing.  Cro.  Jac.  73.  Mass.  432;  Wallis  v.  Truesdell,  6  Pick. 

*  Awtler  V.  Koaks,  Cro.  Eliz.  373-  455;  James  v.  Landon,  Cro.  Eliz.  37; 

430.  iBrereton  v.  Evans,  Cro.  Eliz.  700. 

^  Bawlins'  Case,  4  Co.  54,  a.  *  Bellingham  v.  Alsop,  Cro.  Jac.  53 

«  Pike  V.  Eyre,  9  B.  &  C.  709 ;  Wright  and  408 ;  Cro.  Eliz.  216. 

V.  Douglas,  10  Barb.  97.  »  Nutford    v.    Fennick,   And.   288; 

''  Simpson   v.    Pearson,  31   Ind.  1;  Cro.  Jac.  168. 


Leases  by  Estoppel.  851 

tion  to,  and  affected  by  such  covenant ;  and  though  the  occupant 
may  not  be  bound  to  perform  it,  yet  it  will  operate  as  an  estop- 
pel against  him  in  all  cases  in  which  the  landlord  would  be 
estopped  by  it.' 

§  723.  A  tenant  is  estopped  to  deny  the  seizin  or  the  hus- 
band's death,  if  the  title  is  derived  from  his  heir.  Where  the 
tenant  held  a  deed  from  two  grantors,  one  of  whom  died  and  his 
widow  brought  dower,  it  was  held  that  the  tenant  could  not 
show  by  parol  that  the  interest  and  estate  of  the  deceased  grantor 
in  the  premises  granted  was  less  than  one-half,  in  order  to  reduce 
the  share  out  of  which  she  might  claim  her  dower.*  An  heir  is 
estopped  to  deny  the  seizin  of  his  father  of  lands  which  descended 
to  him,  to  a  claim  of  his  mother  for  dower  therein.'  Where  a 
tenant  claimed  under  the  heir  of  the  husband,  it  was  held  that 
he  could  not  deny  the  death  or  seizin  of  the  husband  in  an  action 
by  his  widow  to  recover  her  dower.^  Where  the  widow,  as 
executrix  of  her  husband's  will,  conveyed  the  estate  to  the  tenant, 
subject  to  her  right  of  dower,  it  was  held  that  he  was  estopped 
to  deny  the  husband's  seizin."  And  where  she  proved  a  deed  of 
the  estate  to  her  husband,  and  one  with  warranty  from  him,  fol- 
lowed by  a  deed  from  his  grantee  to  the  tenant,  it  was  held  suf- 
ficient to  establish  the  husband's  seizin.^  Where  the  husband 
entered  upon  a  parcel  of  laud  other  than  that  described  in  his 
deed,  by  mistake,  and  died,  and  his  administrator  sold  it  as  his, 
and  the  original  vendor,  in  order  to  make  a  good  title  in  the  pur- 
chaser, released  to  him,  the  tenant  was  not  at  liberty  to  deny  the 
husband's  seizin  against  a  claim  to  dower  in  behalf  of  his  widow.' 
It  is  sufficient  for  her  to  establish  her  husband's  seizin,  to  show 
he  was  in  possession  of  the  premises,  and  made  a  deed  of  war- 
ranty of  the  same,  and  that  the  tenant  claimed  under  him." 


•  Duff}-  V.  R.  R.  Co.,  2  Hillon,  496.  Sherwood    v.    Vandenburg,    2    Hill, 

2  Stirason    v.    Bank,    28    Me.    259;  303. 

Mason  v.  Allen,  6  Me.  243.  '  Smith  v.  Ingalls,  13  Me.  284. 

3  Griffith   V.  Griffith,  5  Harring.  5;  «  T:iorudike   v.    Spear,    13   Me.  91; 
McLeery  v.  McLeery,  65  Me.  172.  Davis  v.  Millett,  34  Me.  429. 

4  Hitchcock  V.  Carpenter,  9  Johns.  ■"  Hale  v.  Munn,  4  Gray,  132. 

344;  Hitchcock  v.  Harrington,  G  John.  ^  Bolster  v.  Cushman,  54  Me.  428; 

290;  Montgomery  v.  Bruere,  1  Soutli.  Bancroft    v.   White,   1    Caines,    185- 

260;  Collins  v.  Torrey,  7  Johns.  2T8;  Embree  v.  Ellis,  3  Johns.  119;  Ward 


852  The  Law  of  Estoppel. 

§  724.  A  tenant  at  will,  for  years,  or  for  life,  if  lie  make  a 
feoffment,  the  feoffee  caimot  set  up  a  want  of  seizin  on  the  part 
of  the  feoffor,  in  an  action  bronght  by  his  wife  to  recover  her 
dower.'  Nor  is  he  permitted  to  show  that  such  seizin  was  only 
colorable,  and  designed  to  defraud  the  creditors  of  him  from 
whom  the  husband  derived  his  seizin.  Where  the  husband,  being 
seized  of  a  remainder  expectant  upon  a  life  estate,  mortgages  the 
land  in  fee  and  dies,  and  his  wife  claims  dower  against  the  mort- 
gagee, he  cannot  set  up  a  want  of  seizin  in  the -husband  against 
her  claim.^  Where  the  tenant  holds  under  the  husband,  he  is 
estopped  from  denying  the  husband's  seizin.'  Thus,  where  the 
only  title  of  the  tenant  is  a  deed  of  warranty  from  the  husband, 
he  is  not  permitted  to  show  that  the  husband,  in  fact,  has  no  title 
to  a  part  of  the  premises.  As  the  husband's  deed  is  his  only 
title,  "  he  is,  therefore,  estopped  from  denying  his  grantor's 
seizin."*  Thus,  A.  conveyed  to  B.  by  deed  of  warranty,  and, 
upon  the  death  of  B.,  his  widow,  relying  upon  that  deed  as  evi- 
dence of  her  husband's  seizin,  had  dower  set  out  to  her,  and  after- 
wards A.'s  wife  brought  her  action  of  dower  against  B.'s  wife 
and  the  tenants  claiming  under  her.  B.'s  wife  is  estopped  to 
deny  A.'s  seizin."  So,  where  a  husband  mortgaged  his  estate  with- 
out the  wife  joining  in  the  deed,  he  then  conveyed  the  equity  of 
redemption  by  deed  in  which  his  wife  joined.  Subsequently,  the 
grantee  in  the  last  deed  reconveyed  to  the  husband,  and  it  was 
held,  that  she  could  only  claim  dower  in  the  equity,  since  by  join- 
ing with  her  husband  in  the  deed  of  the  equity,  she  had  released 
and  extinguished  all  right  to  the  estate  as  it  originally  existed.^ 
The  vendee  of  the  husband  is  not  estopped,'  in  an  action  to 
recover  dower,  from  showing  affirmatively  a  want  of  seizin  in  the 
husband.     While  a  tenant  who  held  under  the  husband  was  not 

V.    Fuller,    15   Pick.  185;    Haines    v.  v.  Price,  5  Rich.  L.  525. 

Gardener,    10    Me.    383;    English    v.  ^  May    v.    Tilimun,    1    Mich.    262; 

Wright,    1   N.  J.  L.  437;   Thompson  Finn  v.  Sleight,  8  Barb.  401;  Pickens 

V.  Thompson,  19   Me.  339;  Osterhuut  v.    Wilson,    21  Miss.    691;  Evans  v. 

V.  Shoemaker,  3  Hill,  514.  Evans,  29  Pa.  St.  277;  Pinner  v.  Pin- 

1  Kimball  v.  Kimball,  2  .Me.  226.  ner,  Bush.  475;  Bell   v.  Twilight,  22 

3  Nason  v.  Allen,  6  Me.  243.  N.   H.   500;  Foster  v.    Dwinnell,  49 

3  Pledger  v.  EUcrbe,  6   Rich.  266;  Me.  44. 

Douglass  V.  Dickinson,  11    Rich.  L.  «  Hoogland  v.  Watt,  2  Sandf.  Ch. 

417.  148. 

♦  Wedge  V.  Moore,  6  Cush.  8;  Gayle  ''  Crittenden  v. Woodruff,  11  Ark.  83, 


Leases  by  Estoppel.  853 

permitted,  in  an  action  brought  by  his  grantor's  widow,  to  deny 
the  seizin  of  the  husband,  yet  he  was  permitted  to  deny  that  it 
was  such  a  seizin  as  gave  his  widow  a  right  of  dower.'  Where 
the  husband  conveys  during  coverture,  his  grantee  cannot  deny 
his  seizin.' 

§  725.  A  widow  is  often  barred  from  claiming  dower  by  acts 
which  operate  by  way  of  estoppel.  Such  acts,  in  order  to  have 
this  effect  upon  the  rights  of  a  feme  covert^  must  constructively 
amount  to  one  of  the  modes  known  to  the  law  as  constituting 
sucli  bar,  as  her  right  of  dower  is  neither  derived  from,  nor 
dependent  on  any  contract,  nor  is  she  barred  by  any  acts  or  dec- 
larations upon  which  others  may  have  been  induced  to  act, 
although  in  matter  of  contracts  under  similar  circumstances  she 
would  not  be  allowed,  where  it  would  work  fi-aud  and  injustice, 
to  allege  against  the  ti'uth  of  her  acts  or  declarations."  The 
application  of  estoppels  to  bar  the  right  of  dower  are  generally 
founded  on  circumstances  arising  from  some  action  on  the  part 
of  the  widow  in  the  sale  of  the  estate  after  the  death  of  the  hus- 
band. There  must  be  some  unequivocal  act  or  declaration  on  her 
part  which  would  either  render  a  claim  of  dower  on  her  part 
clearly  unjust,  or  subject  her  to  damages  equal  to  its  value,  if 
claimed,  Avhere  the  court,  to  avoid  circuity  of  action,  applies  the 
estoppel.  Thus,  where  a  widow  was  entitled  to  dower  out  of  an 
equitable  estate  of  her  husband,  which  was  sold  by  his  adminis- 
trator by  order  of  court,  at  which  sale  she  was  present  and  stated 
that  the  estate  was  free  from  any  claim  of  dower,  she  was  thereby 
estopped  from  claiming  it  against  the  purchaser,  who  had  bought 
the  premises  relying  upon  her  statement,  although  it  was  merely 
by  parol.* 

Actual  fraud   is  not  necessary  to  create  an  estoppel.     The 

*  Gammon  V.  Freemau,  31  Me.  243.  Tingle,  8  B.  Mon.  539;  Jones  v. 
»  Thompson  V,  Boyd,  32  N.  J.  L.  543.  Kearney,  1  D.  &  W.  134;  Vaughn 
8  Martin  v.  Martin,  22  Ala.  104.  v.  Vanderstegen,  2  Drew.  363;  Wright 

*  Smiley  v.  Wright,  2  Oliio,  506;  v.  Leonard,  8  Jur.  N.  S.  415;  Lush, 
Craddock  v.  Tyler,  3  Bush,  360;  in  re,  4  Ch.  App.  591;  Drake  v.' 
Wood  V.  Seely,  32N.  Y.  105;  Sweaney  Glover,  30  Ala.  382;  Wilks  v.  Kil- 
V.  Mallony,  62  Mo.  485;  Schwartz  v.  patrick,  1  Humph.  54;  McCnllough 
Sanders,  4'3  111.  18;  Connolly  v.  v.  Wilson,  31  Pa.  436;  Hart  v.  Giles, 
Branstler,    3  Bush,   702;    Wright    v.  67  Mo.  175. 

Arnold,   14  B.   Men.   638;    Davis  v. 


854  The  Law  of  Estoppel. 

principle  is  designed  for  the  benefit  of  one  who  is  misled  to  his 
predjudice,  and  tlie  injury  to  him  is  the  same,  whether  his 
informant  deluded  him  through  ignorance,  mistaken  or  willful 
misrepresentation.  Ordinarily,  one  who  makes  a  representation 
to  another  for  the  purpose  of  influencing  liis  conduct,  assumes 
that  it  is  true,  and  it  may  be  questioned  whether  he  can  defend 
ou  the  ground  that  he  acted  without  knowledge  in  making  it. 
Such  an  one  would  be  concluded  from  denying  his  own  acts  or 
admissions,  which  were  expressly  designed  to  influence  the  con- 
duct of  another,  and  did  so  influence  it,  especially  when  such 
denial  would  operate  in  the  injur}'  of  the  latter.'  It  is  declared 
to  be  the  rule  in  equity  that  ignorance  of  one's  legal  right  does 
not  take  the  case  out  of  the  rule,  when  the  circumstances  would 
otherwise  create  an  equitable  bar,  and  that  he  who  encourages 
another  to  buy  of  a  third  person  a  right  to  which  he  has  himself 
a  title  is  to  be  postponed  in  equity  to  such  a  purchaser.  There- 
fore, where,  at  an  administrator's  sale,  the  auctioneer  proclaimed 
that  the  property  offered  was  clear  of  dower,  and  the  widow  of 
the  deceased  was  present  and  made  no  objection,  although  of  the 
opinion  that  she  had  an  interest  in  the  property  :  Held^  that  she 
was  estopped  from  afterwards  setting  up  her  claim  against  an 
innocent  purchaser.  So  where  the  Avidow,  as  administratrix  of 
her  husband's  estate,  sold  lands  under  license  of  court,  and  orally 
declared  they  were  free  of  dower,  and  the  purchaser  went  on  and 
made  improvements  upon  them,  she  was  estopped.*  Where  the 
heirs  sold  the  inheritance  by  an  arrangement  with  the  widow  that 
she  should  receive  her  share  of  the  purchase  money,  which  was 
accordingly  paid  to  her  and  she  gave  a  receipt  for  the  same,  but 
signed  no  deed  of  release,  she  was  estopped  from  claiming  her 
dower.*  Where,  as  administratrix,  a  widow  sold  her  husband's 
land  by  order  of  the  court,  and  in  her  deed  covenanted  to  warrant 

'  Tilton  V.   Nelson,    27  Barb.  595;  v.   Miller,   3  Paige,   256;    Simpson's 

Canal    Company    v.     Hathawaj-,    8  Appeal,  8  Pa.  St.  199;  Ellis  v.  Diddy, 

AYend.   483  ;  Rice  v.  Bunce,  49    Mo.  1  Ind.  563;  Smiley  v.  Wright,  2  Ohio, 

231;  Sweany  v.  Mallory,  63  Mo.  485;  506;  Brown  v.  Bowen,  30  N.  Y.  519; 

Evans  v.  Snyder,  64  Mo.  516;  Storr  v.  Taggarts'. Appeal,  99  Pa.  St.  627;  Carr 

Baker,  6  Johns.  Ch.  166.  v.  Wallace,  7  Watts,  394;  Tro.xell  v. 

'^  Dongrey    v.    Topping,    4    Paige,  Iron  Co.,   42  Pa.    St.  513;  Ayres  v. 

Ch.  94.  Watson,  57  Pa.  St.  360. 

8  Wood  V.  Seely,  32  K  Y.  105;  Hills 


Leases  by  Estoppel.  855 

the  title,  to  avoid  circuity  of  action,  she  therefore  barred  herself 
of  dower.'  And  where  the  widow,  as  administratrix,  sold  her 
husband's  estate  and  then  married  the  purchaser,  and  he  sold  the 
estate  by  a  warranty  deed,  in  which  she  joined,  relinquishing  her 
right  of  dower  in  the  premises,  she  was  barred  as  to  her  rights 
under  either  husband.''  A  widow  may  be  estopped  from  claim- 
ing dower  by  the  covenants  of  her  ancestor,  from  whom  she  has 
received  assets.  Thus,  the  land  of  A.  was  sold  on  execution,  and 
bought  by  B.,  who  conveyed  it  with  covenants  of  warranty.  A.'s 
wife  was  heir  at  law  to  B.  and  on  his  death  received  assets  by 
descent.  A.  and  B.  having  both  died,  she  sued  for  dower  as 
widow  of  A.,  but  the  court  held  that  she  could  not  claim  it 
against  the  covenants  of  B.,  since  what  she  recovered  as  dower 
she  would  have  to  respond  for  as  heir.' 

§  726.  The  acceptance  of  a  grant  is  a  conclusive  admission  of 
the  right  of  the  grantor  to  convey,  and,  therefore,  when  the 
defendant  in  an  action  of  dower  claims  under  the  husband,  he  is 
estopped  from  denying  his  seizin  against  the  widow.*  Thus, 
where  two  grantors  conveyed  land  by  deed  of  warranty,  without 
any  designation  of  the  manner  in  w^hich  it  was  held  by  them,  one 
died,  and  his  widow  brought  her  action  of  dower,  claiming  to  be 
endowed  of  one-half  of  the  premises  ;  the  grantee  was  estopped 
by  his  deed  from  showing  that  the  living  grantor  was  seized  in 
severalty  of  a  much  greater  portion,  and  the  deceased  of  a  much 
less  proportion  than  an  undivided  moiety.^  In  {^  suit  for  dower 
against  one  who  entered  under  a  deed  from  the  husband's  gran- 
tee, the  defendant  has  been  held  estopped  to  deny  tlie  husband's 
title,  or  to  aver  that,  after  the  purchase  of  the  land,  an  action 
being  brought  against  him  by  the  true  owner,  he  bought  a  true 

»  Magee  V.  Mellon,  23  Miss.  585.  v.    Potter,    17  Wend.   164;   Davis  v. 

» Usher  v.  Richardson,  29  Me.  415.  Darrow,  12    Wend.  65;  Hitchcock  v. 

3  Torrey  v.  Minor,  1   S.  &  M.  Ch.  Harrington,  6  Johns.  290;  Embree  v. 

489;  Bates  v.  ]Sorcross,  14  Pick.  224;  Ellis,  2  Johns.  119;  Collins  v.  Torrey, 

S.  C.,17  Pick.  14.  7  Johns.  278;    Hamblin  v.  Bank,  19 

■•May    V.    Tillman,    1    Mich.    262;  Me.   66;  Haines  v.    Gardner,  10  Me. 

Gayle    v.    Price.    5    Rich.  (L.)   525;  i}83;    Stinson   v.   Bank,    28   Me.  259; 

"Wedge  V.  Moore,  6  Cush.  8;  Ward  v.  Davis  v.   Farrell,   4    Greene    (Iowa) 

Mcintosh,  12  Ohio  St.  231 ;  Sherwood  458. 
V.  Vandenburgh,  2  Hill,  303;  Bowne         *  Stimson  v.  Bank,  28  Me.  259. 


856  The  La^v  of  Estoppel. 

and  permanent  title.'  So,  one  is  estopped  who  holds  under  a 
deed  from  the  widow,  as  executrix  of  the  husband,  conveying 
the  land  subject  to  dower.'  In  a  proceeding  for  dower,  where 
the  land  is  treated  by  the  parties  and  recognized  by  the  court  as 
belonging  to  the  estate  of  the  deceased  husband,  and  the  title  as 
being  in  his  heirs,  the  judgment  rendered  is  conclusive  between 
the  parties  and  those  claiming  under  them  ;  and  hence,  the  widow 
in  such  case  will  be  estopped  from  setting  up  title  in  herself  to 
the  land  embraced  in  such  proceeding.'  So,  where  the  husband 
was  in  possession,  and  an  execution  levied  upon  the  land,  under 
which  the  tenant  claiuis  title,  this  is  sufficient  proof  of  seizin  in 
the  husband.^  Where,  to  a  suit  for  dower,  the  defense  is  set  up 
that  the  defendant  was  not  seized,  and  the  plaintiff  prevails,  this 
judgment  is  conclusive  in  her  favor  upon  a  subsequent  bill  in 
equity  for  Tnesne  profits.^  Acceptance  of  dower  estops  a  widow 
from  disputing  her  husband's  title.'  AVhere  the  widow  remains 
in  possession  of  the  lands,  she  is  estopped  to  deny  the  husband's 
title,  even  though  she  surrenders  to  one  claiming  under  an  execu- 
tion prior  to  the  husband's  deed,  and  then  resumes  possession 
under  him.'  In  an  action  of  dower,  the  husband's  seizin  is  estab- 
lished by  proof  of  a  deed  to  him ;  if  a  deed  from  him,  with  cov- 
enants of  general  warranty ;  and  of  a  similar  deed  from  his 
grantee  to  the  tena-nt,  though  his  deed  was  executed  soon  after  a 
judgment  in  his  favor  upon  a  writ  of  entry  on  his  own  seizin 
and  before  he  had  paid  to  the  tenant  in  that  action  the  amount 
assessed  by  the  jury  for  betterments,  provided  the  value  of  the 
betterments  was  actually  within  the  time  prescribed  by  law,  the 
covenants  of  warranty  estop  the  tenant  from  denying  the  hus- 
band's seizin.* 

§  727.  A  guardian,  being  mother  of  her  ward,  and  having  a 
dower  interest  in  his  real  estate,  applied  for  a  sale  of  her  ward's 
real  estate,  describing  it  as  the  entire  title.  The  order  was  made 
and  the  sale  completed  accordingly,  without  any  mention  of  her 

'  Bowue  V.  Potter.  17  Wend.  164;  Oslerhout  v.  Shoemaker,  3  Hill,  513. 
Norwood   V.    Morrow,   4  Dev.  &  B.  ^  Sellman  v.   Bowen,   8  Gill  &  J 

44->.  383. 

"  Smith  V.  lugalls,  13  Me.  284.  «  Perry  v.  Calhoun,  8  Hump.  551. 

3  Sigraon  V.  Hawn,  86  N.  C.  310.  ''  Grandy  v.  Baily,  3  Ired.  221. 

*  Cochran  v.    Libby,    17    Me.    31);         »  Thorndike  v.  Spear,  13  Me.  91. 


Leases  by  Estoppel.  857 

interest.  She  was  estopped  from  setting  it  up.'  So  A.,  being 
in  possession  of  land,  claiming  title  during  his  marriage  with  B., 
conveyed  it  to  C,  with  general  covenants  of  warranty,  and  deliv- 
ered possession  to  C,  which  C.  retained,  deriving  neither  title 
nor  possession  from  any  other  source.  Upon  the  decease  of  A., 
B.,  his  widow,  claimed  dower  in  the  premises.  C.  was  estopped 
from  sliowing  title  in  a  third  person,  with  whom  he  did  not  con- 
nect himself,  or  from  claiming  an  adverse  possession.*  In  an 
action  of  ejectment  for  dower,  a  purchaser,  as  well  as  the  heir 
holding  under  the  husband,  or  deriving  title  from  under  him,  is 
estopped  from  denying  the  husband'^  title.'  So  where  A.,  in 
anticipation  of  a  suit  to  be  brought  against  him.  conveyed  a  cer- 
tain piece  of  land  to  B.,  to  hold  as  a  secret  trust  for  the  benelit 
of  A.,  no  consideration  was  paid.  The  suit  was  not  brought,  but 
the  record  title  to  the  land  remained  in  B.,  till  after  A.'s  death. 
B.  then  conveyed  it  to  the  executors  of  A.,  they  claiming  it  as  a 
part  of  A.'s  estate.  In  an  action  by  A.'s  widow,  claiming  in  lien 
of  dower  one-half  of  the  real  estate  of  which  her  husband  died 
seized,  it  was  held  that  the  executors  were  estopped  from  denying 
the  seizin  of  their  testator  in  the  land,  either  in  their  own  right, 
or  on  behalf  of  the  beneliciaries  under  the  will.* 

§  728.  A  release  of  dower  in  a  mortgage  deed  works  an  estop- 
pel, not  only  in  favor  of  the  mortgagee,  but  also  of  those  who 
become  entitled,  by  equitable  substitution  to  its  benefits.^  A 
release  of  dower  conveys  no  estate,  neither  is  it  an  utter  extin- 
guishment of  the  right  of  dower  forever,  for  all  purposes  and  as 
to  all  persons,  but  it  operates  against  the  releasor  by  estoppel 
only,  and  in  favor  of  those  only  who  are  parties  and  privies 
thereto."  An  infant  is  not  bound  by  her  release  of  dower, 
although  she  declared  herself  of  age  to  the  acknowledging  officer, 
and  may  maintain  a  suit  to  avoid  within  a  reasonable  time  after 
the  death  of  her  husband.'  But  a  release  of  dower  to  a  person 
who  has  conveyed  the  land  by  such   deed,  creates  no  estoppel  in 

'  Wiseman  v.  Macy,  20  Ind.  239.  *  Dearborn    v.   Taylor,    18   N.    H. 

2  Ward  V.   Mcliitosh,    13    Ohio  S.      153. 

231.  «  French  v.  Lord,  69  Me.  537. 

3  Chapman  v.  Schroeder,  10  Ga.  321-         '  Watson  v.  Billings,  38  Ark.   378  ; 
Hale  V.  Munn.  4  Gray,  133.  S.  C,  43  Am.  R.  1. 

*  Brown  v.  Pitney,  39  ill.  468. 


858  The  Law  of  Estoppel. 

favor  of  any  other  person  than  the  releasee.  Thus,  where  the 
releasee  was  a  stranger  to  the  title,  it  did  not  extinguish  the 
right  of  dower,  but  if  the  stranger  subsequently  acquires  the  title, 
the  release  operates  to  bar  the  dower  as  to  him  by  way  of  estop- 
pel.' Although  a  wife  has  signed  a  deed  of  certain  prenjises, 
with  her  husband,  she  is  not  thereby  estopped  to  claim  dower 
therein,  when  the  deed  contains  no  words  indicating:  her  inten- 
tion  to  release  her  right  of  dower,"  A  widow  who  hijs  received 
dower  shall  not  claim  land  settled  on  her  in  jointure.  If  a 
widow,  who  is  also  devisee,  release,  to  a  purchaser  for  a  valuable 
consideration,  she  is  deemed  as  having  conveyed,  in  every  char- 
acter which  gives  effect  to  her  deed,  and  she  caijnot  set  up  that 
she  conveyed  only  under  a  power,  that  she  disaffirmed  the  pro- 
visions for  herself  in  the  will  and  took  her  dower  and  did  not 
release  that.' 

§  729.  A  parol  assignment  of  dower  is  held  absolutely  con- 
clusive and  estops  any  subsequent  alterations  of  the  limits 
assigned."  By  the  assignment  of  dower  to  a  widow  by  the  owner 
of  the  land,  or  a  residuary  devisee,  it  estops  them  and  their  priv- 
ies from  denying  that  the  land  Avas  subject  thereto.' 

>  Harriman  v.  Gray,  49  Me.  537.  Wallis  v.  Truesdell,  6  Pick.  455;  Bin- 

'  Lathrop  v.  Foster,  51  Me.  367.  ney  v.  Chapman.   5   Pick.    124;  Cod- 

3  Duudas  V.    Hitchcock,   13   How.  man  v.  Jenkins,  14  Mass.  93. 

256.  «  Shattuck  v.  Graag,    23  Pick.  88' 

*  Shattuck  V.  Graag,  23  Pick.  88;  Meserve  v.  Meserve,  19  N.  H.  240. 


BOOK    III. 


CHAPTER    XII. 

ESTOPPEL  In  pais  AND   EQUITABLE  ESTOPPEL. 

Origin,  nature  and  general  principles  of — Maxims  applicable  to — Distinc- 
tion between  legal  and  equitable — Picard  v.  Sears — Freeman  v.  Cook 
— "  Willfully,"  term  defined — Doctrine  in  England  and  in  this  country 
in  regard  to  land — Rule  where  one  of  two  innocent  persons  must  suf- 
fer— Rule  that  no  one  is  allowed  to  take  advantage  of  his  own  wrong 
— Doctrine  of  acquiescence — Estoppel  by  representations — Deception 
— Object  of  equitable  estoppels — Declarations — Admissions — Waiver 
— Who  bound  by — Married  women,  infants,  etc. — Certificates  of  archi- 
tects and  engineers — Landlord,  tenant — Bailor,  bailee — Application  of, 
to  pleadings — Waiver  of  objections — Waiv«r  of  defenses — Jurisdiction 
— Consent  by  silence — Waiver  of  vendor's  lien §§  730- -837 

CHAPTER  Xin. 

EQUITABLE  ESTOPPELS  APPLIED  TO  LANDLORD    AND    TENANT — VENDOR     AND 
VENDEE,    BAILOR  AND  BAILEE,   ETC. 

Instances  of  by  Coke — Illustration  of  the  doctrine  as  applied  to  tenants — 
Origin  and  nature  of — Who  affected  by — Privies,  etc. — Tenant  cannot 
dispute  landlord's  title — Landlord,  when  bound  by — Vendor  and 
vendee — Mortgagor  and  Mortgagee — Licensor  and  licensee— Bound 
by  this  estoppel — Surrender  of  possession  by  tenant — Receiptor 
estopped §§  838-894 

CHAPTER  XIV. 

ESTOPPEL   APPLIED   TO  MORTGAGES. 

Technical  estoppel — Recitals — Equitable  estoppels — Certificates  by  mort- 
gagors— Estoppel  to  set  up  usury — ^Mortgagee  to  deny  title  of  mortga- 
gor— Standing  by  and  seeing  another  mortgage  the  land — Witnessing 
instruments — Waiver  of  liens — Doctrine  in  regard  to  attorneys,  agents, 
etc. — Doctrine  in  regard  to  chattel  mortgages — Acquiescence  of — 
Mortgagee  standing  by  and  seeing  property  sold — Mortgages  with 
covenant  of  warranty §§  895-939 

CHAPTER    XV. 

ESTOPPELS  AFFECTING  THE   TITLE  TO   LAND. 

Importance  of  doctrine — Conflict  of  authority  in  regard  to — Application 
of  "  he  who  is  silent  when  he  should  speak,  will  not  be  allowed  to 
when  he  would  '' — Silence  without  actual  concealment — Illustration 
of  the  doctrines — Inducing  parties  to  purchase — Standing  by  and  see- 
ing officer  sell  property — Elements  of  this  class  of  estoppels — Acts  or 
admissions  on  which  parties  have  acted — Applies  to  real  and  personal 
property — Married  women  and  infants  bound  by — Distinction  between 

[859] 


standing  by  in  silence  and  talking  an  active  part — Circumstances 
rcmlering  tlie  application  of  the  doctrine  necessary  —  "Who 
bound  by — Holding  out  another  as  owner — Acquiescence,  effect 
and   nature  of §§  930-987 

CHAPTER  XVI. 

APPLICATION     OF    ESTOPPELS     TO  NOTES,    BILLS,     BONDS,     CONTRACTS,     DEEDS, 

ETC. 

Object  of  the  doctrine — Effect  of  law  merchants — Surety,  when  estopped 
by  act  of  principal — Stating  that  a  note  is  good  if  a  party  has  no 
defense — Application  to  patent  right  notes — Signing  blank  pieces  of 
paper — Acknowledging  forged  signature — Prevents  setting  up  usury — 
Applicable  to  bonds  where  surety  delivers  them  to  principal  to  com- 
plete— Sunday  contracts — Declarations  of  parties — Filling  blanks 
without  authority g§  988-1037 

CHAPTER  XVn. 

ELECTION — RATIFICATION — ACQUIESCENCE. 

Principal  and  agent — ^Married  women — Administrators — United  States — 
States — Origin  and  nature  of  the  doctrine  of  election — Rules  applic- 
able to  acquiescence  and  ratification — Doctrine  of  civil  law — Doctrine 
in  England — Principles  governing  election — Atlirming  void  contracts 
— Accepting  damages — Time  when  election  must  be  made — Fraud, 
acciuiescence  in — Waiver — Repudiation  of  contracts — Accepting  bene- 
fits under  a  deed  or  will — Waiver  of  irregularities — Receiving  proceeds 
of  sale — Ratitication  by  principal — Representation  of  agent  that  binds 
principal — Subsequent  ratiticatiou — Principal  and  surety...  §§  1028-1128 

CHAPTER  XVHI. 

APPLICATION    TO   BOUNDARIES — EASEMENTS — DEDICATION — ORAL  PARTITION  — 
ADVERSE  POSSESSION,   ETC. 

Location  of  boundary  lines — State  estopped  as  to  boundaries — Location  of 
boundaries — Application  of  doctrine  to  easements — Dedication  by 
estoppel — Parol  partition — Defective  highway  proceedings — When 
cured  by — Parlies  estopped  from  setting  up  adverse  possession — Prin- 
ciples in  regard  to  estoppel  In  pais,  as  applicable  to  laud §§  1129-1164 

CHAPTER  XIX. 

APPLICATION   TO   CORPORATIONS. 

Corporations  bound  same  as  persons — How  bound  by  acts  of  directors— 
By  holdiu"  out  party  as  officer — Liable  for  agent's  frauds — Standing 
by  and  seeing  costly  improvements  made — In  regard  to  issuance  of 
stock — Doctrine  in  regard  to  Ultra  vires — Leases— Notes — Conclusive 
presumptions  in  favor  of — Certification  of  checks  by  banks— Doctrine 
in  regard  to  Insurance  Cos. — Acts  of  their  agents,  when  binding 
— Proofs  of  loss — Waiver  of  conditions — Municipal  corporations — And 
property  holders — Waiver— Zrtc//t's—]\Iunicipal  bonds — Railroads — 
Bills  of  lading — Eminent  domain — Warehouse  receipts — Questions  of 
forfeiture— Doctrine  in  regard  to  stockholders,  officers  and  parties 
recognizing  corporate  existence — Who  cannot  dispute  corporate  char- 
ter   ^§  1105-1260 

CHAPTER    XX. 

now   AN  ESTOPPEL  HAS  TO  BE    MADE   AVAILABLE. 

Pleading  an  estoppel- Waiving  an  estoppel- How  an  estoppel  by  record 
is  to  be  taken  advantage  of— p]ffectt)f  on  court  and  jury — Estoppel  by 
deed,  waiver  of— Nature  and  form  of  plea  of  estoi)pel,  by  record- 
Judgment,  when  conclusive  evidence-Proper  test  to  ascertain  whethef 
it  is  a  bar — Doctrine  in  the  code  states — Pleading  by  estoppel — Bur 
den  of  proof,  on  whom— Pleading  on  judgments  of  other  states — 
Estoppel  by  deed,  how  made  available— Whether  available  at  law  or 
In^  equity,  when  they  affect  land— AVheu  and  where  conclusive  — 
Whether  plead  or  given  in  evidence — What  must  be  shown  by  party 

claiming  in  order  t^  set  up §§  1261-1307 

[860] 


CHAPTER   XII. 

ESTOPPEL  IN  PAIS,  AND  EQUITABLE  ESTOPPELS. 

Section  730.  In  addition  to  the  branches  of  estoppel  of  which 
we  have  treated,  there  is  still  another  class  equally  important, 
founded  on  equitable  principles,  which  consist  of  admissions, 
whicii  are  again  divided  into  two  classes.  They  are  solemn 
admissions  or  admissions  in  judicio,  which  have  been  solemnly 
made  in  the  course  of  judicial  proceedings  ;  their  "  solemnity  " 
being  apparently  derived  from  the  almost  religious  solemnity 
with  which  justice  was  dispensed  in  England,  under  the  old  civil 
law,  which,  in  America,  has  in  a  great  measure  been  dispensed 
with.  And  tmsolem/n  admissions  extra  judicium^  which  have 
been  acted  upon  or  were  made  to  influence  the  conduct  of  others, 
or  to  derive  some  advantage  to  the  party,  which  cannot  be  after- 
wards claimed  without  a  breach  of  good  faith,  that  are  known  as 
Estoppels  in  pais,  or  equitable  estoppels.  This  class  of  estoppels, 
with  the  exception  of  their  application  to  the  peculiar  relation  of 
landlord  and  tenant,  of  which  we  will  treat  hereafter,  have  their 
origin  in  equity,  and  by  universal  custom  have  become  a  well 
settled  and  important  branch  of  the  law.  Under  the  old  English 
decisions,  the  mere  acts,  statements  and  admissions  of  a  party, 
when  not  made  or  performed  under  seal,  or  record,  or  in  the 
course  of  some  of  those  acts  to  which  peculiar  authority  was 
attached  by  law,  were  not  considered  as  estoppels,  and  had  no 
other  effect  or  weight  than  evidence,  more  or  less  strong,  but 
wliicli  might  be  explained  or  rebutted.'  But  the  later  decisions 
in  England  and  America,  have  given  a  much  broader  scope  to 
the  doctrine  of  estoppels  in  pais  than  they  originally  possessed, 
and  the  law  has  been  established  to  be,  that  whenever  an  act  is 
done  or  a  statement  made  by  a  party,  which  cannot  be  contra- 

»  Heane  v.  Rogers,  9  B.  &  C.  577;     660;  Farrow  v.  Hutchinson,  9  A.  «fc 
Richards    y.   Johnston,    4  H.    &  N.      E.  641. 

[861] 


862  The  Law  of  Estoppel. 

vened  or  contradicted  without  fraud  on  his  part  and  injury  to 
others,  whose  conduct  has  been  influenced  by  the  act  or  admis- 
sion, the  character  of  an  estoppel  will  attach  to  what  would 
otherwise  be  mere  matter  of  evidence,  and  it  will  become 
binding  on  a  jury,  even  in  opposition  to  proof  of  a  contrary 
nature.' 

§  731.  Equitable  estoppels  only  arise  when  the  conduct  of  the 
party  estopped  is  fraudulent  in  its  purpose  or  unjust  in  its 
results,  and  this  forms  the  distinction  between  the  common  law 
doctrine  of  estoppel,  and  that  which  has  grown  up  under  the 
influence  of  equity,  in  modern  times."  Every  solemn  admission 
under  seal  was  regarded  as  an  estoppel  by  the  older  law,  even 
where  it  was  not  shown  to  have  been  injurious  to  others,  and 
might  have  been  withdrawn  without  wrong  by  the  person  by 
whom  it  was  made;  the  estoppel  m pais  of  a  feofl'ment  was  of 
the  same  nature  as  that  of  a  sealed  instrument. 

§  732.  The  law  in  regard  to  admissions  has  always  been  to 
treat  them  against  the  interest  of  the  party  making  them  and 
therefore  probably  true.  But  in  regard  to  the  admissions  implied 
from  the  conduct  and  assumed  character  of  the  party,  it  cannot 
be  supposed  that  at  the  time  of  the  principal  act  or  declaration 
the  party  believed  himself  to  be  speaking  or  acting  against  his 
own  interest,  but  often  to  the  reverse.  This  class  of  admissions 
are  therefore  treated  as  a  substitute  for  the  ordinary  and  legal 
proof,  either  by  virtue  of  the  direct  consent  and  waiver  of  the 
party,  or  on  the  grounds  of  public  policy  and  convenience  in  the 
case  of  those  implied  from  assumed  character,  acquiescence  or 
conduct.  In  regard  to  the  conclusiveness  of  admissions,  it  must 
be  remembered  that  the  genius  and  policy  of  the  law  favor  the 

'  Bidwell   V.    Pittsburg,  85  Pa.  St.  15    Conn.   406;    Roe    v.    Jerome,    IS 

412.  Conn.  138;  Davis  v.  Bradley,  24  Vt. 

«  Taylor  V.  Ely,  25  Conn.  250;   Mc-  551;  Rangely  v.  Spring,   28  :Me.  142; 

Afferty  v.  Conovcr,  7  Ohio  State,  99;  Ackla  v.  Ackla,  6  Pa.  St.  128;   Brant 

■Mildmay  v.    Smith,   2  Wm.    Saund.  v.  Coal  Co.,  93  U.  S.   326;  Dorlarqiie 

343;  Pickard  v.  Sears,  6  A.  &  E.  469;  v.  Cress,  71  III.  380;  Preston  v.  Mann, 

Gregg  V.  AVells,  10  A.  &  E.  90;  Heane  25  Conn.  118;  Brewer  v.  R.  R.  Co.,  5 

V.  Rogers,  9  B.  &  C.  577;  Graves  v.  Met.   489;   Evans  v.  Bicknell,  0  Ves. 

Key,  3  B.  &  A.  318;  Bidwell  v.  PiUs-  174;  Slim  v.  Croucher,  1  De  G.  F.  & 

burg,    95    Pa.    St.    412;    Stephens    v.  G.    518;   Lee   v.    Munroe,    7   Crauch, 

Blaird,9Cow.274;  Bushnell  v.  Church,  366. 


Estoppel  in  Pais.  863 

investigation  of  truth  by  all  convenient  and  expedient  methods, 
and  that  the  doctrine  of  estoppels,  by  which  further  investii^ation 
is  precluded,  being  an  exception  to  the  general  rule,  founded  on 
convenience  and  for  the  prevention  of  fraud,  is  not  to  be 
extended  beyond  the  reasons  on  which  it  is  founded.  They  bind 
only  parties  and  privies.  When  verbal  admissions  are  held  con- 
clusive, they  are  rendered  effectually  so  by  not  permitting  the 
parties  to  give  any  evidence  against  them.  This  class  of  admis- 
sions which  have  been  held  conclusive  against  the  party,  are 
those  on  the  faith  of  which  a  court  of  justice  has  been  held  to 
adopt  a  peculiar  course  of  proceeding,  or  on  which  another  per- 
son has  been  induced  to  alter  his  condition  ;  while  an  admission 
may  be  conclusive  in  a  civil  action  it  may  not  be  regarded  as 
even  admissible  evidence  in  a  criminal  one.  Thus,  where  a  party 
was  charged  with  misapplication  of  money  received  from  the 
government,  the  admission  of  his  agent  and  receiver  was  held 
conclusive  of  the  fact  of  the  receipt  of  the  money,  but  was  not 
admissible  to  establish  the  charge  of  criminal  misapplication  of 
it.'  So  that  while  a  matter  in  jx^is,  may  be  conclusive  in  a  civil 
action  it  would  not  be  admissible  in  a  criminal  one. 

§  733.  The  authorities  upon  equitable  estoppels,  or  estoppels  in 
pais,  as  they  are  frequently  termed,  are  numerous  and  constantly 
increasing.  The  doctrine  of  estoppel  in  pais  is  a  most  equitable 
doctrine,  and  one  without  which  the  laws  of  the  civilized  world 
Avould  not  be  satisfactorily  administered.  In  the  jurisprudence 
of  all  civilized  nations  the  doctrine  is  found,  "  that  if  a  man, 
either  by  words  or  by  conduct,  has  intimated  that  he  consents  to 
an  act  which  has  been  done,  and  that  he  will  offer  no  opposition 
to  it,  although  it  could  not  have  been  lawfully  done  without  his 
consent,  and  he  thereby  induces  others  to  do  that  from  which 
they  might  have  otherwise  abstained,  he  cannot  question  the 
legality  of  the  act  he  has  so  sanctioned,  to  the  prejudice  of  those 
who  have  so  given  faith  to  his  words,  or  to  the  fair  inference  to 
be  drawn  from. his  conduct.'" 

§  734.  This  doctrine  of  estoppel  is  a  very  old  head  of  equity 
and  was  recognized  and   applied   in  a  large  number  of  ancient 

'  29  How.  State  Trials,  764.  '  Cairncross  v.  Lorimcr,  3  Macq.  H. 

L.  C.  829,  Per  Lord  Campbell. 


864  The  Law  of  Estoppel. 

cases,.as  will  be  seen  from  the  cases  cited.'  Many  of  these  cases 
related  to  underhand  agreements  in  fraud  of  marriage  settlements; 
but  the  principle  is  of  universal  application.  Relief  was  given 
according  to  the  circumstances  of  each  case — sometimes  by  en- 
joining actions  at  law — in  which  the  legal  title  was  set  up,  and 
sometimes  by  decreeing  conveyances,  and  the  cancellation  of 
deeds  and  other  instruments,  but  in  all  these  cases  relief  was 
given  in  equity,  contrary  to  the  strict  legal  rights  of  the  defend- 
ants. In  the  case  of  an  estoppel  of  this  nature  a  party  is  not 
permitted  to  assert  his  strict  legal  right,  for  the  reason  that,  nnder 
the  circumstances  of  the  particular  case,  it  is  contrary  to  equity 
and  good  conscience.  Thus,  in  a  writ  of  entry :  by  the  tech- 
nical rules  of  law,  if  the  demandant  proves  seizin  in  himself  and 
a  disseizin  by  the  tenant  within  the  time  of  limitation,  he  is 
entitled  to  judgment ;  but  if  the  demandant,  having  a  dormant 
title  to  the  land  demanded,  concealed  his  title  and  encouraged 
the  tenant  to  purchase  another,  he  is  not  permitted  to  set  up  his 
legal  title,  for  the  reason  that  it  would  be  contrary  to  equity  and 
good  conscience."" 

§  735.  There  are  many  fundamentals  of  the  law  which  are 
applicable  to  and  explanatory  of  this  doctrine  of  equitable  estop- 
pel. In  fact,  they  may  be  said  to  be  the  foundation  of  this  broad 
principle  of  morality  and  justice.  Among  the  most  impoi'tant 
are  :  '■^Nnllus  commodum  cajje  re  potest  de  wjiiria  sua  propria  " — 
no  man  shall  take  advantage  of  his  own  wrong.  '•'■  Allegans  con- 
l/raria  non  est  audiendus''^ — one  making  contradictory  allegations 
is  not  to  be  heard.  From  which  we  have  the  trite  saying,  that 
one  cannot  blow  hot  and  cold.  "  Volenti  non  fit  injuria  " — no 
one  can  maintain  an  action  for  a  wrong  where  he  has  consented 

'  Morrison    v.    Arbuthnot,    H.    L.  v.  Cbeyney,  2  Vern.  150;   Lamlee  v. 

1728;  Eq.  Ca.  Abr.  356,  PI.  8;  Evans  Hanman,  2  Vern.  499;  Raw  v.  Pole,  2 

V.  Bi(;kuell,    6   Ves.    174;  xVtwood  v.  Vcru.  239;  Blancbet  v.  Fcsler,  2  Yes. 

Small,  6  CI.  &  P.  232;   Key  v.  Brad-  264;  East  India  Co.  v.  Vincent,  2  Atk. 

Shaw,   2  Vern.  102;  Hall  v.    Potter,  83;   Stiles  v.    Cowper,   3    Atk.    693; 

Show.  P.  C.  76;  Law   v.  Law,  3  P.  Farmer    v.    Webber,    13  Viner  Abr. 

Wms.  391,  525;   Neville  v.  Wilkinson,  1  Bro.  C. 

2  Dyer  v.    Dyer,   9    Ch.    Cas.    108;  C.  543;  Storrs  v.  Barker,  6  Johns.  Ch. 

Teasdale  v.   Teasdale,  13  Viner,  539;  166;  Strong  v.  Ellsworth,  26  Vl.  3()6; 

Hobbs    V.    Norton,   1    Vernon,    136;  Horn  v.  Cole,  51  N.  H.  287:   Webber 

Gale  V.  Lindo,  1  Vern.  475 ;  Hunsden  v.  Farmer,  2  Brown  P.  C.  88. 


Estoppel  in  Pais.  865 

to  the  act  which  occasions  his  loss.  ^^Qui  Tion  prohihet  quodpro- 
htbere  potest  assentire  vidstur  " — he  who  does  not  forbid  what  lie 
can  forbid,  seems  to  assent.  '■^  Qui  potest  et  debet  vetare,  juheV — 
he  who  can  and  onght  to  forbid,  and  does  not,  commands.  '-'-Qui 
tacet,  consentire  videtur''''- — he  who  is  silent  appears  to  consent. 
''^Nemo  ex  propria  consequitur  actionem'''' — no  one  acquires  a 
right  of  action  from  his  own  wrong.  '■'■Ex  dolo  malo  nan  oritur 
actio  " — a  right  of  action  cannot  arise  out  of  a  fraud.  '■'■Frustra 
legis  aux  Hum  quaerit  in  legem  cominittif'' — vainly  does  he  who 
offends  against  the  law  seek  the  help  of  the  law.  '"'' Frustra  petis 
quod  station  alteri  reddere  cogeris^'' — in  vain  you  will  seek  that 
which  you  will  be  compelled  to  give  back  to  another.  ^''Omnes 
licentiam  lioibere  his,  quae  pro  se  inducia  sunt,  renunciare  " — 
every  man  may  renounce  a  benefit  or  waive  a  privilege  which 
the  law  has  conferred  upon  him.  '■'Consensus  tollit  errorem'''' — 
consent  removes  or  obviates  a  mistake.  ^'■Quilihet  potest  renun- 
ciare juri  pro  se  inducto^''  '■''Quod  semel  placuit  in  electlonihus 
ampjlius  dlsplicere  non potest'"' — that  which  in  making  his  elec- 
tion, a  man  has  been  once  pleased  to  choose,  he  cannot  after- 
wards quarrel  with.  ^'^ Nul jyrendra advantagede sontort demesne''' 
And  the  following,  "He,  certainly,  who  trusts  most,  ouglit  suffer 
most."'  Where  one  of  two  innocent  parties  must  suffer,  he, 
through  whose  agency  the  loss  occurred,  must  sustain  it."  It 
Avill  be  seen  as  Ave  progress  in  this  branch  of  the  law  of  estoppel 
that  the  vast  number  of  cases  cited  are  illustrations  of,  and  the 
application  of  tliose  terse  principles  to  facts  and  circumstances  in 
which  the  doctr'ne  of  equitable  estoppel  becomes  an  important 
factor  in  the  determination  of  the  rights  of  parties. 

§  736.  The  fundamental  principle  upon  which  this  doctrine 
is  based  is  the  equitable  one,  the  suppression  of  fraud  and  the 
enforcement  of  honesty  and  fair  dealing.  The  ground  upon 
which  a  party  is  estopped  from  proving  that  his  represen- 
tations on  which  another  has  acted  were  false,  is  that  to  permit 
it,  is  contrary  to  equity  and  good  conscience.  The  term  equitable 
estoppel  was  accorded  to  it  for  the  reason  that  the  jurisdiction  of 
enforcing  this  equity  belonged  originallj'  and  peculiarly  to  courts 
of  chancery  or  equity,  and  was  not  exercised  b}'  courts  of  law 

'  Le  Neve  v.  Le  Neve,  3  Ark.  646. 
Vol.  L— 55 


TnE  Law  of  Estoppel. 

until  comparatively  a  recent  date.  In  its  application  to  suits 
affecting  the  title  to  land  it  is  in  some  American  States  and 
other  countries  confined  to  courts  of  equity.  It  was  said  in  a 
modern  case,  that  "  these  estoppels  are  now  called  equitable 
estoppels,  not  because  their  recognition  .is  peculiar  in  equitable 
tribunals,  but  because  they  arise  upon  facts  which  render  their 
application  in  the  protection  of  rights  equitable  and  just." 
Courts  of  chancery  recognize  them  in  cases  of  equitable  cogni- 
zance, and  the  courts  of  common  law  just  as  readily  and  freely. 
The  same  doctrines  and  principles  are  applicable  to  sales  of  land 
as  well  as  personal  property,  and  the  equitable  estoppel  is  availa- 
ble in  an  action  at  law  for  the  land.'  Estoppels  in  pais  are  cre- 
ated by  the  law  for  the  purpose  of  doing  justice.  They  are 
called  equitable  estoppels,  in  contradistinction  to  an  estoppel  by 
a  deed  or  record.  Whether  they  exist  in  specific  cases  is  often 
a  question  of  great  dlfliculty.  Tlie  rules  of  law  in  regard  to 
them  are  being  well  established.  They  may  arise  from  a  variety 
of  facts,  and  often  depend  in  a  great  degree  upon  the  relations 
■which  exist  between  the  parties. 

§  737.  In  a  late  ease,"  where  the  title  to  land  was  in  question, 
the  objection  was  made  that  this  equitable  estoppel  was  not  avail- 
able at  law.  The  Supreme  Court  of  the  United  States  said : 
"  This  is  certainly  not  the  common  law.  Littleton  says  :  '  And 
so  a  man  can  see  one  thing  in  this  case,  that  a  man  shall  be 
estopped  by  matter  of  fact,  though  there  be  no  writing,  by  deed 
or  otherwise.'  Lord  Coke,  commenting  hereon,  gives  an  instance 
of  estoppel  by  matter  of  fact — tliis  very  case  of  partition.'     And 

"  Dickei'son  v.  Colyrove.  100  U.   S.  Stearns  v.   McNamara,    36    Me.    78 

578;    Brown   v.    Wheeler,    17  Conn.  Maxwell  v.  Bridge  Co.,  41  Micb.  453 

345;  Stodtliird  v.    Chambers,  2  How.  Kid  v.    Mitchell,    1   N.   &  Mc.  3;i4 

284;  Drcxcl  v.  Berney,   16  F.  R.  522;  Dezell   v.    Odell,  3   Hill.  215;  Stincb- 

Kirk  V.  Hamilton,  103  U.  S.  68;  Doe  field  v.  Emerson,    52  Me.  405;  Bige- 

V.    Kosser,    3  East,    15;  Durham  v.  low  v.  Foss,  5!)Me.  162;  Stons  v.  Bar- 

Alden,  20  :Me.  2ol;  Hatch  v.  Kimball,  ker,  6  .Johns.  Ch.  IGG;  Evans  v.  Bick- 

16  Me.  140;  Barnard  v.  Seminaiy,   49  nell,   6  Ves.  174;  Pickard  v.  Sears,  6 

Mich.    444;    Sebright    v.    Moore,    33  A.  &  E.  469. 

Mich.  92;  Colweil  v.    Brown,  75  111.  '  Dickerson  v.  Colgrove,  100  U.  S. 

516;    Horn  v.   Cole,   51   N.    H.  287;  578. 

Eangely     v.     Spring,    21    Me.    137;  ^  Co.  Litt.  356,  §  667. 


Estoppel  in  Pais.  867 

such  an  award  has  been  held  sufficient  to  estop  a  party  against 
whom  ejectment  was  brought.' 

In  Cincinnati  v.  White,^  tlie  proprietors  of  the  city  plat,  in 
1789,  dedicated  the  gi'ouud  between  Front  street  and  the  Ohio 
river  to  the  public  for  coinuiercial  and  other  purposes.  The 
legal  title  had  not  then  emanated  from  the  government  of  the 
United  States.  In  this  state  of  things  the  statute  of  limitations 
does  not  run.  White  long  subsequentlj'^  acquired  the  legal  title 
and  brought  ejectment  for  tlie  premises.  The  court  said  (p.  441)  : 
"  This  is  a  possessory  action,  and  the  plaintiff,  to  entitle  himself 
to  recover,  must  have  the  right  of  possession,  and  whatever  takes 
away  this  right  of  possession  will  deprive  him  of  the  remedy  by 
ejectment.'"  This  is  the  rule  laid  down  by  Lord  Mansfield,  in 
Atkins  V.  Hoard  :^  "Ejectment,"  says  he,  "  is  a  possessory  rem- 
edy, and  only  competent  where  the  lessor  of  the  plaintiff  may 
enter,  and  every  plaintiff  in  ejectment  must  show  a  right  of  pos- 
session as  well  as  of  property."  If  the  plaintiff  in  the  present 
case  was  not  entitled  to  possession,  how,  according  to  this  author- 
ity, could  he  recover  ?  If  he  had  recovered,  and  a  court  of  equity 
would  have  enjoined  him  from  executing  the  judgment  by  a 
writ  of  possession,  we  ask,  again,  how  could  he  recover  in  this 
action  ?  Is  not  the  concession  that  relief  could  be  had  in  equity 
fatal  to  the  proposition  we  are  considering  ?  In  Stoddard  v. 
Chambers,^  it  was  said  by  this  court :  "  On  a  title  by  estoppel, 
an  action  of  ejectment  can  be  maintained."  We  do  not  overlook 
the  fact  that  in  tliis  case  a  land  claim  had  been  conveyed  before 
confirmation.  When  confirmed  by  an  act  of  Congress  to  the 
assignor  and  his  legal  representative,  it  was  held  that  the  legal 
title  became  vested  in  the  former,  "  and  inured,  by  M-ay  of  estop- 
pel, to  his  grantee,  and  those  who  claimed  by  deed  under  him." 
In  that  case,  as  in  this,  there  was  no  formal  transfer  of  the  title. 
The  transfer  was  made,  as  under  a  statute  of  limitations,  when 
the  bar  is  complete,  by  operation  of  law.°  Why  may  not  a  like 
transfer  be  iield  to  have  been  made  in  this  case  ?  The  reason 
given  for  the  rule  of  inurement  and  estoppel  by  virtue  of  con- 

1  Doe   d.    V.    Rosser,    3  East,   15  ;  *  Atkins  v.  Hoard,  1  Burr.  119. 

Browu  V.  Wheeler,  17  Conn.  SHS.  *  Stoddard    v.    Chambers,  2  How. 

*  Cincinnati  v.  White,  6  Pet.  431.  317. 

3  Adams  Eject.  33;  Starkie,  part  4,  «  Lefflngwell  v.  Warren,  2  Black, 

505,  506,  507.  599. 


868  The  Law   of  Estoppel. 

veyanccs  is,  that  it  avoids  circuity  of  action.  Does  not  the  same 
consideration  apply,  with  equal  force,  in  cases  of  estoppel  i7i 
pais  f  Why  is  it  necessary  to  go  into  equity  in  one  case  and 
not  in  the  other? 

It  has  never  been  held  that  the  statute  of  frauds  applies  to 
cases  of  iiinrenient,  and  it  has  been  conceded  that  it  does  not 
affect  cases  of  dedication.  Where  is  the  difference  in  principle 
in  this  respect  between  those  cases  and  the  one  before  us  ?  But 
here  this  point  cannot  arise,  because  the  promise  relied  upon 
was  in  Avriting.  In  Cincinnati -y.  White,  supra^  this  court,  speak- 
ing of  the  dedication  there  in  question,  said,  "  the  law  considers 
it  in  the  nature  of  an  estoppel  in])au^  which  precludes  the  origi- 
nal owner  from  revoking  such  dedication,"  and  that  a  grant 
might  have  been  presumed  "if  that  had  been  necessarj',  and  the 
fee  might  have  been  considered  in  abeyance  until  a  competent 
grantee  appeared  to  receive  it ;  whicli  was  as  early  as  the  year 
1802,  when  the  city  was  incorporated."  Ilere  there  was  a 
grantee  capable  of  taking  the  fee  all  the  time  from  the  date  of 
the  letter.  The  common  law  is  reason  dealing  by  the  light  of 
experience  with  human  affairs.  One  of  its  merits  is  that  it  has 
the  capacity  to  reach  the  ends  of  justice  by  the  shortest  paths. 

The  passage  of  a  title  by  imirement  and  estoppel  is  its  work 
without  the  help  of  legislation.  We  think  no  sound  reason  can 
be  given  why  the  same  thing  should  not  follow  in  cases  of  estop- 
pel in  pais  where  land  is  concerned. 

This  defense  may  be  made  at  law,  and  a  resort  to  equity  is 
not  necessary.  Whether  the  title  passed  or  not,  it  is  fatal  to  the 
action — that  the  plaintiff  was  not  entitled  to  possession  of  the 
premises. 

§  7o8.  This  doctrine  of  estoppel  may  debar  the  truth  in  a 
particular  case,  and  is  therefore  not  unfruquently  in  such  case 
declared  odious.  Yet  it  must  not  be  forgotton,  that  it  estops  only 
when  its  utterance  would  convict  the  party  of  a  previous  false- 
hood, or  would  be  a  denial  uf  a  previous  representation  on  the  faith 
of  which  other  persons  have  dealt  or  pledged  their  credit,  or 
expended  their  money.  It  is  a  doctrine,  when  properly  under- 
stood and  applied,  that  estops  the  truth  in  order  to  prevent  fraud 
and  falsehood,  and  imposes  silence  only  when  the  party  should 
not  in   conscience  and   honesty  be  allowed  to  speak.     The  old 


Estoppel  in  Pais.  869 

maxim  that  "  Estoppels  are  Odious,"  is  not  properly  applicable  to. 
equitable  estoppels,  as  they  are  founded  on  the  highest  principles 
of  morality  and  justice,  and  they  are  favorably  regarded  by  all 
courts  as  tending,  when  properly  consti-ued  and  applied,  to  uphold 
the  purpose  of  agreements  and  prevent  and  suppress  fraud  and 
injustice.  It  is  wise  and  just,  therefore,  to  provide  certain  means 
by  which  a  man  may  be  estopped  or  concluded — not  from  speak- 
ing the  truth — but  from  saying  that  is  false  which  by  the  inter- 
vention of  himself,  has  once  become  accredited  for  truth.  And 
in  all  probability,  no  code,  liowever  rude  it  might  have  been,  ever 
existed  without  some  such  provision  for  the  security  of  men, 
acting  as  all  men  must,  upon  the  representations  of  others. 

§  739.  This  doctrine  is  properly  and  peculiarly  a  doctrine  of 
equity,  originally  introduced  there  to  prevent  a  party  from  taking 
a  dishonest  and  unconscientious  advantage  of  his  strict  legal 
rights — though,  like  many  other  equitable  doctrines,  constantly 
administered  at  law.  The  ancient  practice  differed  from  the 
modern,  and  in  actions  at  law,  the  courts  being  unable  of  giving 
effect  to  this  equity,  were  often  enjoined  where  the  party  insisted 
on  his  rights  at  law,  contrary  to  the  equitable  doctrine.  Tlie 
office  of  equitable  estoppels  at  law  is  therefore  like  that  of  injunc- 
tions in  equity,  to  preclude  rights  that  cannot  be  asserted  con- 
sistently with  good  faith  and  practice,  to  prevent  wrongs  for 
which  there  might  be  no  adequate  remedy.  And  they  should 
consequently,  when  the  circumstances  will  permit,  be  so  construed 
and  moulded  as  not  to  deviate  from  their  object ;  and  those  cases 
where  estoppels  are  said  to  be  odious  or  not  favored,  should  be 
only  where  the  technicality  of  the  estoppel  can  not  be  subservient 
to  its  equity. 

§  740.  It  is  necessary,  to  observe  the  distinction  between  this 
doctrine  of  equit}^  and  the  legal  estoppel  by  matter  in  pais  and 
not  confound  one  with  the  other.  There  is  no  distinction  between 
them,  in  their  effect,  viz. :  that  they  both  preclude  the  party  from 
showing  the  truth  in  the  particular  case.  The  means,  by  which 
the  same  result  is  reached  is  not  only  distinct  but  directly  anta- 
gonistic. The  legal  estoppel  debai-s  the  truth,  and  also  the  equity 
and  justice  of  the  individual  case,  in  accordance  with  the  supposed 
paramount  importance  of  rigorously  enforcing  a  certain  and 
unvarying  fundamental  principle  of  the  law.     For  reasons  ol 


870  The  Law  of  Estoppel. 

•general  policy,  which  have  been  heretofore  stated  in  tliis  work,  a 
record  is  held  to  import  incontrovertible  or  absolnte  verity,  and 
for  the  same  reason  a  party  is  not  permitted  to  contradict  his 
solemn  admission  by  deed.  For  no  man  shall  be  allowed  to  defeat 
liis  own  act  or  deny  its  validity  to  the  prejudice  of  another.  And 
the  same  is  equally  true  of  legal  estoppel  by  matter  i7i  pais. 
Certain  acts  done  out  of  court  and  without  deed  were  by  a 
technical  and  unyielding  rule  of  law,  upheld  on  similar  grounds 
of  public  policy,  and  always  followed  by  certain  legal  conse- 
quences. The  legal  effect  of  such  acts  was  not  allowed  to  be  con- 
troverted by  proof.  Thus  the  doctrine  was  established,  that  if 
one  accepts  a  lease  and  enters  under  it,  he  is  estopped  to  claim 
any  other  estate  in  the  land  during  the  term  ;  nor  can  he  show 
that  he  was  the  owner  of  the  land  when  the  lease  was  made. 
Estoppels  by  matter  injjais  were  few  in  number,  and  all  of  this 
general  and  well-defined  character ;  and  they  all  enforce  some 
technical  rule  of  the  law  against  the  truth,  and  also  against  the 
justice  of  the  individual  case.  Lord  Coke,  in  his  examination  of 
the  different  kinds  of  estoppel  by  matter  in  pais,  states  the  follow- 
ing :  "  by  livery,  by  entry,  by  acceptance  of  rent,  by  partition 
and  by  acceptance  of  an  estate.'" 

.  §  741.  Speaking  of  legal  estoppels  by  matter  in  pais,  Parke, 
B.,  says,^  "  they  are  but  few  and  are  pointed  out  by  Lord  Coke 
(as  above  stated).  They  are  all  cases  which  anciently  really  were, 
and  in  contemplation  of  law  have  always  continued  to  be  acts  of 
notoriety  no  less  solemn  than  the  execution  of  a  deed,  such  as 
livery,  acceptance  of  an  estate,  and  the  like.  Whether  a  party 
had  or  had  not  concurred  in  an  act  of  this  sort  was  deemed  a  mat- 
ter which  there  could  be  no  difficulty  in  ascertaining,  and  then  the 
legal  consequences  followed."  In  tlie  authorities  which  contain 
the  most  complete  enumerations  of  the  various  kinds  of  estoppels 
and  the  most  complete  discussion  of  the  law  on  that  subject  there 
is  little  if  any  allusion  to  tlie  equitable  estoppel,  the  nature  of 
which  is  considered  in  this  chapter.  Ail  legal  estoppels,  whether 
by  record,  deed,  or  by  matter  in  pais,  were  founded  on  strict 
legal  rules,  and  debiu'red  or  precluded  proof  of  the  truth  and  jus- 
tice of  the  individual  case."     The  effect  then  of  legal  estoppels, 

1  Co.  Lit.  352,  A.  ^  Lyon  v.  Reed,  13  M.   &  W.   309; 

*  Lyon  V.  R(;ed.  13  M.  «&  W.  309.      Freeman  v,  Cooke,  2  Excbq.  658. 


Estoppel  in  Pais.  871 

being  to  exclude jproof  of  the  truth  and  justice  of  particular  eases, 
were  denounced  as  "  odious,''^  and  were  strictlj'  construed  against 
the  parties  seeking  to  avail  themselves  of  them.  It  was  required 
in  a  manner  similar  to  other  inequitable  defenses,  that  thej  be 
pleaded  with  certainty  to  every  intent,  and  not  be  taken  by  argu- 
ment or  inference  ;  and  ought  to  be  a  precise  affirmation  of  that 
which  makes  the  estoppel,  and  be  precise,  clear,  and  unequivocal. 
According  to  Lord  Coke,  when  they  were  relied  on  by  averment 
and  tried  by  a  jury,  the  jury  might  find,  and  were  bound  by  their 
oaths  veritat&m  dicere  to  find,  according  to  the  truth  of  the  case 
regardless  of  the  estoppel.'  The  modern  practice  has  matei'ially 
changed  this  rule,  and  legal  estoppels  may  be  relied  on,  when 
given  in  evidence,  without  being  specially  pleaded.  Such  estop- 
pels exclude  evidence  of  the  truth  and  the  equity  of  the  particular 
cause  to  support  a  strict  rule  of  law,  on  grounds  of  public  policy. 

§  742.  The  class  of  estoppels  termed  equitable,  or  estoppels  in 
pais  being  the  creation  of  courts  of  chancery,  the  remedy  in  such 
cases  was  by  application  to  a  court  of  equity,  and  no  redress  could 
be  obtained  at  law  unless  under  rare  and  exceptional  circum- 
stances. But  the  common  law  has  been  enlarged  and  enriched 
with  the  principles  and  maxims  of  equity  which  are  constantly 
applied  at  tlie  present  time,  by  a  wise  adaptation  of  ancient  forms 
to  the  more  liberal  spirit  of  modern  times.  Equitable  estoppels 
are  based  on  the  directly  contrary  ground  of  promoting  the  equity 
and  justice  of  the  individual  case,  by  preventing  the  party  from 
asserting  his  rights  under  a  general  technical  rule  of  law  when 
he  has  so  conducted  himself  tliat  it  would  be  contrary  to  equity 
and  good  conscience  for  him  to  allege  and  prove  the  truth.  TJie 
facts  upon  which  equitable  estoppels  depend,  as  a  general  rule,  are 
proved  by  oral  evidence  ;  and  this  evidence  should  be  precise, 
clear  and  nnequivocal,  before  it  should  be  admitted  to  estop  the 
party  from  showing  the  proof,  especiallj^  affecting  the  title  to 
land.  Where  the  facts  are  clearly  proved,  the  maxim  that  estop- 
pels are  "  odious^''  which  may  have  been  correctly  applied  to 
legal  estoppels,  (for  the  reason  that  they  debarred  the  truth  and 
justice  of  the  case),  is  not  applicable  to  the  doctrine  of  equitable 
estoppels,  as  it  has  been  through  inadvertence,  from  a  supposed 

»  Co.  Lit.,  227,  a,  Trials  Per  Pais,  284;  Com.  Dig.  Est.  S.  5. 


872  The  Law  of  Estoppel. 

analogy  with  the  legal  esto]ipel  by  matter  in  pais,  to  which  they 
have  in  this  respect  no  similarity  wluitever.  And  the  weight  of 
authority  as  derived  from  cases  in  which  the  real  nature  of  this 
equitable  doctrine  has  been  considered  is,  that  such  estoppels  are 
not  "  vdio^isr  and  to  he  construed  strictly,  but  they  are  entitled 
to  a  fair  and  liberal  application,  in  the  same  manner  that  other 
equitable  doctrines  are  which  are  admitted  to  suppress  fraud  and 
promote  honesty  and  fair  dealing.' 

§  743.  In  accordance  with  the  principles  on  which  the  doc- 
trine of  equitable  estoppel  is  founded,  the  party  is  precluded  from 
setting  up  his  legal  title,  because  he  has  so  conducted  himself  that 
to  do  so  would  be  contrary  to  equity  and  good  conscience.  As  in 
cases  of  fraud  and  dishonesty,  th.e  circumstances  out  of  which 
the  question  may  arise  are  of  infinite  variety,  and  unless  courts 
at  law  are  willing  to  abandon  the  duty  of  administering  this 
equitable  doctrine  effectually  in  the  suppression  of  fraud  and 
unfair  dealing,  the  application  of  it  caimot  be  confined  within 
the  limits  of  any  narrow,  technical  definition,  such  as  will  relieve 
courts  from  looking,  as  in  other  cases  depending  on  fraud  and 
dishonesty,  to  the  circumstances  of  each  particular  case.  There 
are  certain  general  rules  applicable,  as  in  other  cases  where  relief 
is  sought  on  similar  grounds. 

§  744.  The  origin  of  this  branch  of  estoppels  being  purely 
equitable,  and  having  been  borrowed  from  equity  by  courts  of 
law,  it  is  incumbent  upon  such  courts,  in  applying  the  principle, 
to  ascertain  the  practice  in  equity  and  be  guided  by  it  in  their 
application  of  the  doctrine.  In  equity  the  doctrine  has  been 
liberally  applied  in  the  suppression  of  fraud  and  enforcement  of 
honesty  and  fair  dealing,  without  any  attempt  to  confine  the  doe- 
trine  within  the  limits  of  a  strict  rule.  The  application  of  equi- 
table estop])els  by  courts  of  equity  is  to  every  species  of  property, 
and  there  can  certainly  be  no  reason  for  restricting  its  operation 
by  courts  of  law,  the  necessity  of   protection   against  fraud,  no 

*  Aspitel   V.  Bryan,  3  B.  &  S.  472;  Ya'n  Rensselaer  v.  Kearney,  11  How. 

Howard  v.  Hudson,  2   EI).  &    B.  10;  326;  Preston   v.  Mann,  25   Conu.  118; 

Andrews    v.    Lyon,    11    Allon,    349;  Biirkhalter  v.  Edwards,  16   Ga.  593; 

Dezell  V.  Odell,  3  Hill,  220;  Common-  Shaw  v.  Beebe,  35  Vt.  205;   and  see 

wealth  V.  Motz,  10  Pa.  St.  530;  Buck-  cases  cited,  Post, 
ingliain   v.    Hannu,    2   Ohio   St.  557; 


Estoppel  in  Pais.  873 

matter  what  the  interests  are  or  may  be  that  are  at  stake.  There 
is  nothing  in  the  nature  of  real  estate,  whether  the  action  be  at 
law  or  equity,  which  should  deprive  it  of  the  benefit  of  those 
wise  and  salutary  principles  which  are  applied  without  hesitation 
in  both  jurisdictions  in  the  case  of  personalty.  The  doctrine  of 
equitable  estoppels  has  become  too  firmly  established  to  question 
at  this  day  the  wisdom  of  the  change  which  released  it  from  the 
exclusive  equity  jurisdiction  of  former  times,  enlarging  its  oper- 
ation to  the  whole  field  of  jurisprudence.  The  doctrine  of  equi- 
table estoppels  is  one  which  at  the  present  time  can  be  applied 
at  law  to  real  and  personal  property,  without  forcing  the  parties 
to  seek  relief  in  equity,  and  as  between  co-ordinate  powers, 
neither  can  lessen  the  power  of  the  other  hy  arrogating  them  to 
itself.  The  appropriation  of  the  doctrines  of  equity  by  the  com- 
mon law  will  not  estop  the  right  to  seek  redress  by  an  application 
in  due  form  to  chancery. 

§  745.  The  common  law  courts,  acting  upon  principle  that 
equity  was  antagonistic  to  law,  established  a  system  which,  while 
harsii  and  oppressive,  was  founded  upon  the  erroneous  principles 
of  such  antagonism.  But  there  has  not  been,  nor  is  there  at 
present,  any  direct  conflict  between  the  two  systems. 

§  746.  In  many  of  the  States  of  the  Union,  the  distinction 
between  actions  at  law  and  equity  have  been  abolished,  in  other 
States,  where  both  jurisdictions  still  exist  as  independent  tribu- 
nals, the  line  of  demarcation  between  legal  rights  and  equitable 
rights  is  still  maintained.  Is  there  any  reason  for  these  distinc- 
tions, and  do  they  in  reality  exist?  A  learned  commentator  says  : 
"  Equity,  in  its  true  and  genuine  meaning,  is  the  soul  and  spirit 
of  all  law ;  positive  law  is  construed  and  rational  law  is  made  by 
it.  In  this,  equity  is  synonymous  to  justice ;  in  that,  to  the  true 
sense  and  interpretation  of  the  rule.  But  the  very  terms  of  a 
court  of  equity  and  a  court  of  law,  as  contrasted  with  each  other, 
are  apt  to  mislead  us ;  as  if  one  judge  without  equity,  and  the 
other  was  not  bound  by  any  law,  whereas  every  definition  or 
illustration  to  be  met  with,  which  now  draws  a  line  betweeii  the 
two  jurisdictions  by  setting  law  and  equity  in  opposition  to  each 
other,  will  be  found  either  totally  erroneous  or  erroneous  to  a 
certain  degree.  It  is  said  that  the  business  of  a  court  of  equity 
is  to  abate  the  rigor  of  law.     But  no  such  power  is  contended 


874  The  Law  of  Estoppel. 

for.  In  all  cases  of  positive  law,  the  courts  of  equity,  as  well  as 
the  courts  of  law,  mast  say  with  Ulpian,  'Aoc  quidem  per  quam 
duraTTi  est.,  sed  ita  lex  scripta  eat?  It  is  said  that  a  court  of 
equity  determines  according  to  the  spirit  of  tiie  rule,  and  not 
according  to  the  strictness  of  the  letter.  But  so  also  does  a  court 
of  law.  Both,  for  instance,  are  equally  bound  and  equally  pro- 
fess to  interpret  statutes  according  to  the  true  intent  of  the 
Legislature. 

§  747.  **  In  general  laws,  all  cases  cannot  be  foreseen ;  or,  if 
foreseen,  cannot  be  expressed;  some  will  arise  that  will  fall 
within  the  meaning,  though  not  within  the  words,  of  the  legis- 
lator ;  and  others,  which  may  fall  within  the  letter,  may  be 
contrary  to  his  meaning,  though  not  expressly  excepted.  These 
cases,  those  out  of  the  letter,  are  often  said  to  be  with  the  equity 
of  an  act  of  the  Legislature,  and  so  cases  within  the  act  are  fre- 
quently without  the  equity.  Here,  by  equity,  is  meant  nothing 
but  the  sound  interpretation  of  the  law,  though  the  words  of  the 
law  itself  may  be  too  general,  or  otherwise  inaccurate  or  defect- 
ive. These,  then,  are  the  cases  which,  as  Grotius  says,  '"''  lex  non 
exacte  definite.,  sed  arbitrio  honi  viri  permittitr  in  order  to  lind 
out  the  true  sense  and  meaning  of  the  law  giver,  from  every 
other  topic  of  construction. 

"  After  stating  the  principal  ground  ot  the  jurisdiction  exer- 
cised in  courts  of  equity,  ho  says  :  '  For  the  sake  of  certainty, 
peace  and  justice,  each  court  should,  as  far  as  possible,  follow  the 
other,  in  the  best  and  most  effectual  rule  for  attaining  those 
desirable  ends.  It  is  a  maxim  that  equity  follows  the  law,  and 
the  law  has  not  scrupled  to  follow  equity.  There  cannot  be  a 
greater  solecism  than  that,  in  two  sovereign  and  independent 
courts,  established  in  the  same  country,  exercising  conc".irrcnt 
jurisdiction,  and  over  the  same  subject  matter,  there  should  exist 
in  a  single  instance  two  different  rules  of  property,  clashing  with 
or  contradicting  each  other.'  " 

§  748.  The  systems  of  jurisprudence  in  courts  of  law  and 
equity  are  now  equally  artificial  systems,  founded  in  the  same 
principles  of  justice  and  positive  law,  but  varied  by  dillcrent 
usages  in  the  forms  and  modes  of  their  proceedings.  It  is  said 
that  in'order  to  give  jurisdiction  to  a  court  of  equity  that  tho 


Estoppel  in  Pais.  876 

complainant  has  no  remedy  at  law  ;  he  who  should,  for  this  rea- 
son, conclude  that  no  cause  is  tried  in  equity  where  relief  might 
be  had  at  law,  and  at  the  same  time  examines  the  extent  and 
variety  of  the  cases  in  the  equity  reports,  must  think  that  the  law  is 
a  dead  letter  indeed.  The  rules  of  property,  rules  of  evidence  and 
rules  of  interpretation  in  both  courts  are  or  should  be  exactly  the 
same ;  both  ought  to  adopt  the  best,  or  must  cease  to  be  courts  of 
justice.  The  distinction  between  law  and  equity  is  never  in  any 
countrj'  a  permanent  distinction.  Law  and  equity  are  in  continual 
progression,  and  the  former  is  constantly  gaining  on  the  latter.  A 
great  part  of  what  is  now  strict  law  was  formerly  considered  as 
equity,  and  the  equitable  decisions  of  this  age  will  unavoidably  be 
ranked  under  the  strict  law  of  the  next.  Such  pre-eminently  has 
been  the  course  of  jurisprudence  on  this  subject.  Many  of  the 
doctrines  originating  in  the  courts  of  equity,  respecting  the  rights 
of  parties,  have  been  incorporated  into  the  code  of  the  common 
law,  so  that  there  is  now  no  substantial  difference  between  the  two 
systems.  This  has  been  true  in  substance  for  nearly  a  century 
past.  There  can  be  no  reason  for  still  adhering  to  these  delusive 
distinctions  which,  when  carefully  examined,  are  found  to  have 
emanated  from  causes  more  imaginal  than  real.*  When  the  vast 
number  of  cases  are  taken  into  consideration,  in  which  the  doc- 
trine of  equitable  estoppel  has  been  applied  in  courts  of  law  as 
well  as  equity,  well  may  it  be  said  that  "  the  case  of  equitable 
estoppel  is  one  of  the  most  splendid  triumphs  of  equitable  princi- 
ples over  technical  rules,  and  of  the  homage  which  these  prin- 
ciples have  received  by  their  adoption  in  the  courts  of  law. 
Without  any  prophetic  anticipation,  we  may  well  say  that 
"returning  Justice  lifts  aloft  her  scale.'""     • 

§  749.  This  equitable  estoppel  involves  a  question  of  legal 
ethics,  the  doctrine  lies  at  the  foundation  of  morals,  and  applies 
wherever  a  party  has  made  a  representation,  by  words  or  con- 
duct, which  he  cannot  in  equity  and  good  conscience  prove  to  be 
false ;  and  that  this  kind  of  estoppel,  being  a  broad  doctrine  of 
equity,  cannot  be  limited  in  application  b}'  the  terms  of  any  nar- 
row legal  definition  ;  from  the  means  in  which  the  party  must 
avail  himself  of  these  estoppels,  it  is  obvious  tiiat  there  can  be 

•  Blacks.  Comm.  B.  »,  Ch.  27.  «  4  Kent,  II.  Ed.  p.  173. 


876  The  Law   of  Estoppel. 

no  settled  or  fixed  rules  of  universal  application.'  As  in 
cases  of  technical  legal  estoppels,  in  many  and  most  instances, 
whether  the  act  or  admission  shall  operate  as  an  estoppel  or  not, 
must  depend  on  the  circumstances  of  tlie  case,  though  there  are 
some  general  rules  which  may  materially  assist  in  the  examina- 
tion of  such  cases. 

§  750.  The  case  of  Pickard  v.  Sears,'  although  decided  in 
1837,  has  been  regarded  to  a  great  extent  by  the  courts  of  Eng- 
land and  this  country  as  the  leading  case  at  law  on  this  subject. 
It  was  trover  by  the  mortgagee  of  personal  property  against  the 
defendants  who  were  purchasers  at  a  sale  on  execution  against 
the  mortgagor.  The  facts  set  up  in  defense  were,  that  the  plaint- 
iff was  present  at  the  sale,  did  not  disclose  his  title  as  mort- 
gagee, and  encouraged  the  defendants  to  purchase.  The  question 
on  trial  was,  as  to  the  property  of  the  plaintiff  in  the  goods,  and 
Lord  Denraan  directed  a  verdict  for  the  plaintiff.  A  rule  to 
show  cause  why  the  verdict  should  not  be  set  aside  was  made 
absolute.  In  delivering  the  judgment  of  the  court,  Lord  Den- 
man  said  :  "  His,"  the  plaintiff's,  "  title  having  been  established, 
the  property  could  on!)'  be  divested  by  gift  or  sale,  of  which  no 
specific  act  was  even  surmised.  £ut  the  rule  of  law  is  cleai\ 
tliAit  where  07ie,  by  his  words  or  conduct^  wiUfidly  causes  another 
to  helieve  the  existence  of  a  certain  state  of  things,  and  induces 
him  to  act  on  that  helief  so  as  to  alter  his  oivn  previous  position^ 
the  former  is  concluded  from,  averring  against  the  latter  a  differ- 
ent state  of  things  as  existing  at  the  same  time:  and  the  plaintiff 
might  have  parted  with  his  interest  in  the  property  by  a  verbal 
gift  or  sale,  without  any  formalities  that  throw  technical  diffi- 
culties in  the  way  of  legal  evidence.  And  we  think  his  conduct 
in  standing  by  and  givhig  a  kind  of  sanction  to  the  proceedings 
under  the  execution  was  a  fact  of  such  a  nature,  that  the  opinion 
of  the  jury  ought  to  have  been  taken  wJiether  he  had  not,  in  point 
of  fact,  ceased  to  be  the  ownerP 

§  751.  In  the  light  of  the   authorities  on   this  subject,  it  is 

'  Canal  Co.  v.  Hathaway,  8  Wend.  N.  H.  287;  Preston  v.  Maun,  25  Conn. 

483;    Dezell    v.    Odell,    3    Hill,   22r);  118. 

Strong  V.  Ellsworth,  2G  Vt.  306;  Lucas  ^  pickard  v.    Sears,   6  Ad.  &  Ell, 

V.  Hart,  5   Iowa,  415;   Frost   v.    Ins.  469. 
Co.,  5  Denio,  154;  Home  v.  Cole,  51 


Estoppel  in  Pais.  877 

somewhat  difficult  to  understand  that,  in  this  action  at  law,  the 
court,  at  so  recent  a  period,  as  when  this  case  was  decided,  after 
stating  the  general  equitable  doctrines,  did  not  apply  it,  and  de- 
cide that  the  plaintiff  was  estopped  by  his  conduct  to  prove  his 
title,  but  instead,  allowed  the  facts  to  go  to  the  jury  as  evidence 
that  the  plaintiff,  in  some  undefined  and  mysterious  manner,  had 
parted  with  his  title  to  the  property.  It  is  important,  however, 
to  show  the  reluctance  with  w^hich  courts  acted  in  actions  at  law, 
in  admitting  a  defense  which  was  founded  on  fraud,  and  which 
was  one  of  the  peculiar  matters  of  equitable  jurisdiction.  The 
statement  of  Lord  Den  man  as  to  the  rule  of  law  above  referred 
to,  which  is  the  equitable  doctrine  of  estoppel,  and  applicable  to 
the  facts  in  that  case,  could  not  have  been  understood  by  him  at 
the  time  as  laying  down  a  technical  definition  establishing  the 
limits  of  the  doctrine,  and  excluding  all  cases  that  did  not  come 
clearly  within  tlie  terms  used  by  him  on  that  occasion  (as  will  be 
hereafter  shown).  Yet  tlie  statement  of  the  rule  in  the  language 
of  Lord  Den  man,  has  been  adopted  as  the  correct  rule  in  any 
number  of  cases  in  which  the  doctrine  of  equitable  estoppel  was 
applied  by  the  courts  of  this  country,  with  the  usual  results  of 
contradictory  interpretations  thereof.  Thus,  one  interpretation 
has  been  that  the  representations  must  have  been  made  with  the 
intent  to  deceive,  and  to  deceive  the  party  who  claims  the  benefit 
of  the  estoppel.'  And  another  interpretation  of  the  same  case, 
"  that  wiiere  the  representation  comes  in  any  way  to  the  ears  of 
the  party  wlio  acts  on  it,  he  may  claim  the  benefit  of  the  estop- 
pel.'" 

§  752.  The  well  established  and  often  recognized  fundamental 
principle  of  law.  Nulhis  Coininoduin  Capere  Potest  De  injuria 
Sua  Propria.  That  no  man  shall  take  advantage  of  his  own 
wrong^  is  fully  recognized  in  all  courts  of  law  and  equity,  and  is 

'  Plumer    v.    Lord,    9    Allen,   455;  ^  Mitchell  v.  Reid,  9  Cal.  204;  Quirk 

Audrews    v.    Lyon,    11    Allen,    349;  v.  Tliouias,  6  Mich.  76. 

Langdon    v.    Dond,    10    Allen,    433;  ^  Findonv.  Parker,  11  M.  &W.  680; 

Auueuried   v.    Bettel}^    5   Allen,  382;  Daly  v.  Thompson,  10  M.  &  W.  309; 

Hawes  v.  Merchant,  1  Curt.  C.  C.  144.  Malins  v.  Freeman,  4  Bing.  N.  C.  395; 

And  was  recognized  by  Lord  Camp-  Doe  v.  Banks,  4  B.  &  A.  409;  Runiscy 

bell  in  Howard  v.  Hudson,  2  El.   &  v.  Ky.  Co.,  14  C.  B.  N.  S.  653;  Haw- 

B.  1.  kins  V.  Hall,  3  My.  &  Cr.  281;  Pope 


878 


The  Laav  of  Estoppel. 


one  of  the  most  essential  elements  in  an  equitable  estoppel,  or 
estoppel  injyai.s,  wliicli,  as  a  principle  of  law,  is  founded  on  the 
strictest  morality.  As  this  class  of  estoppels  are  founded  upon 
the  principle  of  equity  and  justice,  that  no  man  shall  take  advan- 
tage of  liis  own  wrong,  it  is  a  well  established,  just  and  sahitary 
principle  that  where  one  by  his  words  or  conduct  willfully  causes 
another  to  believe  the  existence  of  a  certain  state  of  things,  and 
induces  him  to  act  on  that  belief,  so  as  to  alter  his  owm  previous 
position,  the  former  is  estopped  from  averring  against  the  latter 
a  different  state  of  things  as  existing  at  the  same  time.' 

§  753.  The  doctrine  announced  in  this  now  celebrated  case, 
while  it  has  been  extensively  adopted,*  has  been  regarded  as  a 


V.  Fleming,  5  Excbq.  249;  Molton  v. 
Camroux,  4  Exchq.  17;  Arden  v. 
Goodacre,  11  C.  B.  371;  Hooper  v. 
Lane,  6  H.  L.  Cas.  443;  Williamson 
Williamson,  71  Me.  442;  Pearson  v. 
Douglass,  57  Tenn.  151  ;  Blair  v. 
Wait,  69  N.  Y.  113;  McLean  v.  Dow, 
42  Wis.  610;  Broyles  v.  Nowlin,  59 
Tenn.  191;  Eriiardt  v.  Boaro,  3  Mc- 
Crary,  19;  Mowry's  Appeal,  94  Pa.  St. 
376;  Collier  v.  Pfenning,  34  N.  J.  E. 
22;  Inness  v.  Stewart,  36  Mich.  285; 
Stevenson  v.  Saline  Co.,  65  Mo.  425; 
Koon  V.  Snodgrass,  18  W.  Va.  320; 
Yonugblood  v.  Cunningham,  38  Ark. 
572;  Rabun  v.  Rabun,  61  Ga.  647; \ 
McDonough  v.  Hanifan,  7  111.  App. 
50;  Clermoutel's  Estate,  12  Phihi.  139; 
Downey  v.  O'Donnell,  92  111.  559; 
Welch  V.  Slierer,  93  111,  64;  Davis  v. 
Williams,  49  Iowa,  83;  Butler  v. 
Moore.  73  Me  151;  S.  C,  40  Am.  R. 
348;  Green's  Appeal,  97  Pa.  St.  342; 
Knaggs  V.  Mastin,  9  Kas.  532;  Dorris 
V.  Smith,  7  Oreg.  267;  Tuflfts  v.  Du 
Bignon,  61  Ga.  322;  Brower  v.  Callca- 
der,  105  111.  88. 

»  Pickard  v.  Sears,  6  Ad.  &  El. 
469. 

■^  Timon  v.  Whitehead,  58  Tex.  290; 
Lovev.  Barbour,  17  Tex.  312;  Harri- 
son V.  Wright,  13  M.  &  W.  816;  Hib- 
bard  v.  Coolidge,  1  Met.  84;  Miles  v. 


Furber,  L.  R.  8  Q.  B.  77;  Thrustonv. 
Thornton,  1  Cush.  89;  Brogden  v.  R. 
R. ,  L.  R.  2  App.  Cas.  006;  Carrol  v. 
R.  R.,  Ill  Mass.  1;  Rice  v.  Barnett, 
116  Mass.  312;  Ragsdale  v.  Gohlke,  36 
Tex.  286;  Stephens  v.  Baird,  9  Cow. 
274;  Redd  v.  R.  R.  Co.,  48  Va.  102; 
Home  v.  Cole,  51  N.  H.  287;  Gregg  v. 
Wells,  2  P.  &  D.  296;  Gregg  v.  Wells. 
10  A.  &  E.  90;  Stroud  v.  Stroud,  7  M. 
&  C.  417;  Coles  v.  Bank,  10  A.  &  E. 
439;  Sandys  v.  Hodgson,  10  A.  & 
E.  472;  Corni.sh  v.  Abingdon,  4  II.  & 
N.  549;  Downes  v.  Cooper,  2  Q.  B. 
256;  Doe  v.  Graves,  16  L.  J.  Q.  B. 
297;  Rumball  v.  Bank,  2  Q.  B.  D.  194; 
Goodwin  v.  Roberts,  1  App.  Cas.  476; 
Alderson  v.  Maddison,  L.  R.  5  Ex.  D. 
296;  Alexander  v.  Walter,  8  Gill,  252; 
Homer  v.  Grosholz,  38  Md.  530 ; 
Bramble  v.  State,  14  Md.  435;  Brown 
V.  In.s.  Co.,  42  Md.  385;  Hamilton  v. 
R.  R.,  44  Md.  551;  Simons  v.  Steele. 
36  N.  H.  73;  Choteau  v.  Goddin,  39 
]\Io.  229;  Cowles  v.  Bacon.  21  Conn. 
451 ;  Sharon  v.  ]\Iinnock,  6  Nev.  377; 
Att'y  Gen'l  v.  Stephens.  1  K.  &  J. 
724:  Pigett  v.  Stralton,  29  L.  J.  Ch. 
9;  McCance  v.  London,  etc.,  7  II.  & 
N.  190;  Parish  v.  Coon.  40  Cal.  33; 
Mallory  v.  Horan,  49  N.  Y.  Ill;  Hos- 
tler V.  Hayes,  3  Cal.  302;  Connover  v. 
Porter,    14  Ohio,    450 ;    Nichols    v. 


Estoppel  in  Pais. 


879 


statement  of  the  equitable  doctrine  made 'in  reference  to  the 
circumstances  of  that  case,  and  is  neither  a  formal  nor  complete 
definition  of  the  doctrine  of  equitable  estoppels. 


Atberton,  10  Q.  B,  949;  Pilbower  v. 
Todd,    11   K    J.   E.    312;  Hniley   v. 
Franks,  18  La.  An.  559;  McCance  v. 
Loudon,   &c.    Co.,   3  H.   «&  C.    343; 
Chapman  v.  O'Brien,  34  N.  Y.  Super. 
524;  Stevens  V.  Dennett,  51  N.  H.  324; 
Strafford,    in  re,  2  L.    J.    Ch.    202; 
Hawes  v.    Wasson,   2   B.  &  C.    540; 
Willis  V.  CarpeiUer,  14  N.  B.  R.  53; 
Crockett  v.  Lashbrook,  5   Mon.    530; 
Cave  V.  Mills,  7  11.  &  N.  913;   People 
V.  Brown,  67  111.  435;   Foster  v.  Ins. 
Co.,  3  E.  &  B.  48;  Gurney  v.  Evans,  3 
H.  &  N.  122;  Martin  v.  Zellerbach,  38 
Cal.  300;  Woodlcy  v.  Coventry,  2  H. 
&  C.   164;  Hardy   v.   Bank,    51   Md. 
563:    Acton   v.    Dooley,    74  Mo.   63; 
Dunstan  v.  Patterson,  2  C.  B.   N.   S. 
495;  Spurlockv.  Sproule,  72  Mo.  509; 
Taylor   v.    Zepp,  14  Mo.  483 ;  Cox  v. 
Cannon,    4  New   Cas.   455;   Bales  v. 
Perry,  51  Mo.  449;  Ry.  Co.  v.  Wood- 
cock,   7  M.   &  W.    574;   Ry.   Co.  v. 
Danvil,  2  Q.  B.  281;  Wincbell  v.  Ed- 
wards, 57  111.  41;  Leeper  v.  Hersman, 
58  111.  218;   Davidson  v.  Silliman,  34 
La.   Ann.  235;  Miller  v.   Springer,  70 
Pa.  St.  69;   Dean    v.    Martin,  34  La. 
Ann.   103;  Trowbridge,    v.   Mathews, 
38  Wis.  656;   Mahaska  v.  Des  Moines, 
28  111.    137; 'Erie.    &c.    Co.    v.    Dela- 
ware, &c.  Co.,  31  N.  J.  E.  383;  Favill 
V.  Roberts,   3   Lans.   14;    Waddell  v. 
Morris,  36  Wis.  611;  Hall  v.  Dock  Co., 
23  Wis.  370;  Lathrop   v.   Knapp,    37 
Wis.    215;   Ford   v.    Smith,    37    Wis. 
.361  ;     Ilawley    v.     Middlebrook,    28 
Conn.  537;  Stone  v.  Brittoii,  33  Ala. 
543;     Bank   v.    Woolaston,    3    Harr. 
90;  Bryan   v.    Walton,    14    Ga.    180; 
Burkhalter   v.   Edwards,  16   Ga.  503; 
Burton  v.  Black,  33   Gn.  53;  Bank  v. 
Dennis,  37  111.  381;  Williams  v.  Jack- 
son, 38  Ind.  334;  Tappan  v.   Morse- 


man,  18  Iowa,  499;  Mathews  v.  Light, 
33  Me.  305;  Quirk  v.  Thomas,  6  Mich. 
76;  Wells  v.  Pierce,  37  N.  H.  503; 
Richardson  v.  Chickering,  41  N.  H. 
380;  Martin  v.  Righter,  10  N.  ,T.  E. 
510;  Corkhill  v.  Landers,  44  Barb. 
218;  Baker  v.  Seely,  17  How.  P.  397; 
Arnold  v.  Comman,  50  Pa.  St.  361; 
Strong  V.  Ellsworth,  36  Vt.  366;  Love 
V.  Wells,  35  Ind.  503;  David  v.  Shep- 
ard,  40  Ala.  587;  Roe  v.  Jerome,  18 
Conn.  138;  Brown  v.  Wright.  17  Ark. 
9;  Lasalle  v.  Barnett,  1  Blackf.  156; 
Mitchell  V.  Reed,  9  Cal.  204;  Laski  v. 
Goldman,  18  La.  Ann.  294;  Bank  v. 
Jerome.  18  Conn.  443;  Forsyth  v.  Day, 
46  Me.  176;  Plumer  v.  Lord,  9  Allen, 
445;  Cook  v.  Finkler.  9  Mich.  131; 
Wyman  v.  Perkins,  29  N.  H.  218; 
White  V.  Laugdon,  30  Vt.  599;  Dyer 
V.  Cady,  20  Conn.  563;  Allen  v.  Win- 
ston, 1  Rand.  65;  Preston  v.  Mann, 
25  Conn.  18;  Garrison  v.  Garrison,  35 
N.  J.  L.  153;  Rigney  v.  Smith.  29 
Barb.  383;  Bowen  v.  Buck,  28  Vt. 
308;  Neuman  v.  Hood,  30  Mo.  207; 
Buchanan  v.  Moore,  13  S.  &  R.  304; 
Adams  v.  Brown,  16  Ohio  St.  78;  Mc- 
Dermott  v.  Barnum,  19  Mo.  214; 
Eldred  v.  Hazlett.  33  Pa.  St.  316;  Car- 
penter V.  Stilwell,  12  Barb.  13;  Gilbert 
V.  Manchester,  55  >T  H.  298;  Odliu  v. 
Gove.  41  N.  H.  465;  Davis  v.  Handy, 
37  N.  H.  65;  Drew  v.  Kimball,  43  K 
H.  285;  Schenck  v.  Sautter,  73  Mo. 
46;  Loucks  v.  Kenniston,  50  Vt.  116; 
Slagel  V.  Murdock,  65  Mo.  522 ;  Ferry 
Co.  V.  Dodge  Co.,  6  Xeb.  18;  Holmes 
Steele,  28  JST.  J.  E.  173;  Collier  v. 
Pfenning,  34  N.  J.  E.  22;  Holtz  v. 
Beldin,  12  Phila.  498;  Moore  v.  Hill, 
85  N.  C.  218;  Mecouch  v.  Loughery, 
12  Phila.  416;  Bynum  v.  Miller.  86 K 
C.  559;  S.  C,  41  Am.  R.  467;  Osborne 


880 


The  Law   of  Estoppel. 


§  754.  In  Freeman  v.  Cooke,'  Parke,  Baron  said,  uy  tlie  terra 
willfully,  as  used  in  Pickard  v.  Sears,  suj)ra,  we  must  under- 
stand if  not  that  the  party  represents  that  to  be  true  which  he 
knows  to  be  untrue,  at  least  that  he  means  that  his  representation 
shall  be  acted  upon,  and  that  it  is  acted  npon  accordingly : 
*  If  whatever  a  man's  intention  may  be,  he  so  conducts  himself 
that  a  reasonable  man  would  take  the  representation  to  be  true, 
and  believe  it  was  meant  that  he  should  act  upon  it,  and  he  did 
act  upon  it  as  true,  the  party  making  the  representation  would 
be  equallj'  precluded  from  contesting  its  truth.  In  short,  the 
representations  are  to  be  regarded  as  willful  when  the  person 
making  them  means  them  to  be  acted  on,  or  if,  without  regard 
to  intention,  he  so  conducts  himself  that  a  reasonable  man  would 
take  the  representation  to  be  true,  and  believe  it  was  meant  he 
should  act  on  it,"  and  conduct,  by  negligence  and  omission, 
where  there  is  a  duty  cast  upon  a  person  by  trade  or  otherwise, 
to  disclose  the  truth  will  frequently  have  the  same  effect."     The 


V.  Elder,  65  Ga.  360;  Airey  v.  Institu- 
tion, 33  La.  An.  13-10;  Nelson  v.  Clay- 
brook,  4  Lea,  687;  Hefner  v.  Vando- 
lab,  57  111.  520;  Vauneter  v.  Cros.sman, 
43  Mich.  405;  Kirk  v.  Hamilton,  103  U. 
S.  68;  Kirkpatrick  v.  Brown,  57  Ga. 
450;  Saunders  v.  Moore,  14  Bush,  97; 
Montague  v.  Weil,  30  La.  Ann.  50; 
Koon  V.  Snodgrass,  18  W.  Va.  320; 
Sweeny  v.  Williiims,  36  N.  J.  E.  027; 
Tiffany  v.  Andei>on,  55  Iowa,  405; 
Rabun  v.  Rabun,  61  Ga.  047;  Cler- 
niontel's  Estate,  12  Pbila.  139;  Graves 
V.  Blondell,  70  Me.  180;  Talcott  v. 
Brackett,  5  III.  App  00;  Davis  v.  Will- 
iams, 40  Iowa,  83;  Heane  v.  Rogers, 
9  B.  &  C.  583;  Graves  v.  Key,  3  B.  & 
A.  318;  Burrowes  v.  Lock,  10  Ves. 
Jr.  470;  Pasley  v.  Freeman,  3  T.  R.  51 ; 
Sim  v.  Telegraf  Co.,  L.  R.  5  Q.  B.  D. 
188;  Jordon  v.  Money,  5  H.  L.  C.  185; 
Alderson  v.  ^Maddison.  L.  R.  SExchq. 
D.  293;  McKenziev.  Linen  Co.,  L.  R.  6 
App.  Cas.  82;  Polak  v.  Everett,  L.  R.  1 
Q.  B.  D.  669;  Clarke  v.  Hart,  OH.  L.  C. 
633;  Swan  v.  North,  &c.  Co.,  7  H.  & 
N.  603;  Burkinshaw  v.  Nichols,  L.  R. 


3  App.  Cas.  1004;  Bank  v.  Bank,  L. 
R.  6  H.  L.  352;  Goeing  v.  Outhouse, 
95  111.  346. 

'  Freeman  v.  Cooke,  2   Exchq.  654. 

^  Freeman  V.  Cook,  3  Exehq.  654; 
White  v.  Greenish,  11  C.  B.  N.  S. 
209;  Howard  v.  Hudson,  2  E.  &  B.  1; 
Simpson  v.  Ins.  Co.,  2  C.  B.  N.  S. 
289;  Dunston  v.  Patterson,  2  C.  B. 
N.  S.  495;  Clark  v.  Hart,  0  H.  L.  C. 
633;  Gregg  v.  Wells,  10  A.  &  E.  90; 
Newton  v.  Lidyard,  13  Q.  B.  925;  Jor- 
dan v.  Money,  5  II.  L.  C.  185;  Tyer- 
man  v.  Smith,  6  E.  »&  B.  719;  Bill  v. 
Richards,  3  H.  &  N.  311 ;  Cornish  v. 
Abingdon,  4  H.  &  N.  549;  Kieran  v. 
Sanders,  6  A.  ifc  E.  515;  Cox  v.  Can- 
non, 4  Bing.  N.  C.  453;  Downs  v. 
Cooper,  3  Q.  B.  256;  Galling  v.  Rod- 
man, 6ind.  289;  Tilton  v.  Nelson,  27 
Barb.  595;  Anthony  v.  Stephens,  40 
Ga.  241;  Cady  v.  Owen,  34  Vt.  598; 
Smith  v.  Paj-senger,  2  Mill.  (La.)  59; 
Lyman  v.  Cessford,  15  Iowa,  229; 
Copelaud  v.  Copeland,  28  Me.  538; 
Hieks  V.  Cram,  17  Vt.  448;  Wooiey  v. 
Chamberlain,  27  Vt.  270;  Spiller  v. 


Estoppel  in  Pais. 


881 


word  "  willfully  "  as  used  iu  this  connection,  is  not  to  be  taken  in 
tlie  limited  sense  of  the  term  "  maliciously "  or  of  the  term 
"  fraudulently,"  nor  does  it  of  necessity  imply  an  active  desire  to 
produce  a  particular  impression,  or  to  induce  a  particular  line  of 
conduct.  Whatever  may  be  the  motive,  one  who  so  acts  or 
speaks  that  the  natural  consequence  of  his  words  or  conduct  will 
be  to  influence  another  to  change  his  conduct,  is  legally  charge- 
able with  an  intent  or  willful  design  to  induce  the  other  to  believe 
liim,  and  to  act  upon  that  belief,  if  such  prove  to  be  the  actual 
result.  The  case  of  Pickard  v.  Sears  with  this  qualification  of  the 
word  *'  willfully "  and  the  statement  of  Baron  Parke,  has 
received  the  sanction  of  many  tribunals  in  England  and  this 
country. 


Scribuer,  36  Vt.  245;  Halloran  v. 
Whitcomb,  43  Vt.  306;  Raugely  v. 
Spring,  21  Me.  130;  Brookman  v.Met- 
calf,  4  Rob.  (N".  Y.)  468;  Kiuney  v. 
Farnswoitli,  17  Conn.  355;  Wliittaker 
V.  Williams,  20  Conn.  98;  Drew  v. 
Kimball,  43  N.  H.  382;  Zuelitmau  v. 
Roberts,  109  Mass.  53;  Thomas  v. 
Browu,  1  Q.  B.  D.  714;  Carr  v.  R'y 
Co.,  L.  R.  10  C.  P.  307;  Van  Toll  v. 
R'y  Co..  12  C.  B.  N.  S.  75;  Alexan- 
der V.  Worman,  6  H.  &  N.  100;  Win- 
cbell  V.  Edwards,  57  111.  41 ;  Mangles 
V.  Dixon,  1  M.  &  G.  446;  Atty.  Gen'l 
V.  N:\ylor,  33  L.  J.  Ch.  151;  Wank- 
f ord  V.  Fotherly,  2  Vern.  322;  Ram- 
sden  V.  Dyson,  1  L.  R.  H.  L.  120; 
Cookesv.  ^lascall,  2  Vern.  200;  Rolt 
V.  White.  3  De.  G.  J.  &  S.  360;  Hodg- 
son V.  Hutchinson,  5  Vin.  Abr.  222; 
Didve,  &c.  V.  Neale,  12  C.  L.  &  F.  249; 
Luders  v.  Anstey,  4  Ves.  501 ;  Graham 
V.  Ry  Co.,  2  M.  &G.  146;  Kent  v. 
Jackson,  14  Beav.  384;  Tricket  v. 
Tomiinson,  13  C.  B.  K  S.  663:  Pole  v. 
Leask,  33  L.  J.  Ch.  155;  Money  v. 
Jordan,  15  Beav.  372;  Pulsford  v. 
Richards,  17  Beav.  94;  Hammersley 
V.  Biel,  12  CI.  &  F.  45;  Neville  v. 
Wilkinson,  1  Br.  C.  C.  543;  Monte- 
fiori  V.  Moutefiori,  1  W.  Bl.  363; 
Bentley  v.  Mackay,  31  Beav.  155; 
Vol.  II.— 56 


Hefner  v.  Vandolah,  57111.  520;  Laver 
V.  Fielder,  32  Beav.  1;  Gale  v.  Lindo, 
1  Vern.  475;  Hutton  v.  Rossiter,  7 
De.  G.  M.  &  G.  9;  Yeomans  v.  Wil- 
liams, 1  L.  R.  Eq.  184;  Bank  v.  Bank, 
50  N.  Y.  375;  Barnard  v.  Campbell, 
55  K  Y.  456;  Bank  v  Hazard,  30  N. 
Y.  226;  Storrs  v.  Barker,  6  Johns.  C. 
166;  Blair  v.  Wait,  69  N.  Y.  113;  R'y 
Co.  in  re,  L.  R.  3  Q.  B.  584;  Gay  lord 
V.  Van  Loan,  15  Wend.  308;  Woodly 
V.  Coventry,  2  II.  &  C.  164:  Buchanan 
V.  Moore,  13  S.  &  R.  304;  Finuegan 
V.  Carraher,  47  N.  Y".  493;  Hames  v. 
India  Co.,  11  Moo.  P.  C.  C.  53; 
Lawes  v.  Purser,  6  E.  &  B.  930;  Mc- 
Farlane  v.  Gianniacopulo,  3  II.  &  N. 
860;  Piggott  V.  Stiatton,  29  L.  &  J. 
Ch.  9;  Cave  v.  Mills,  7  H.  &  N.  913; 
Baxendale,  in  re,  11  C.  B.  N.  S.  801; 
Xaef  V.  Mutter.  12  C.  B.  X.  S.  816: 
R.  V.  Lubeuham,  4  T.  R.  251;  Hig-. 
gins  V.  Senior,  8  31.  &  W.  834;  Knox 
V.  Whalley,  1  Esp.  159;  Swan  v. 
North,  &c.  Co..  7  C.  B.  N.  S.  400; 
Arnold  v.  Bank,  L.  R.  1  C.  P.  D. 
578;  Baxendale  v.  Bennett,  L.  R.  3 
Q.  B.  D.  525 ;  Sim  v.  Telegraf  Co. ,  L.R. 
5  Q.  B.  D.  188;  Taylor  v.  R'y  Co.,  28 
L.  J.  Ch.  285;  Jeyes  v.  Booth,  1  B.  & 
P.  97. 


882  The  Law  of  Estoppel. 

§  755.  In  Freeinan  v.  Cooko,'  the  representation  relied  upon 
as  an  estoppel  was  indeed  made  so  as  to  induce  the  defendant  to 
do  the  act  complained  of,  but  not  with  the  intention  of  inducing 
him  to  do  that  act,  and  further,  that  it  was  contradicted  before 
being  acted  upon,  so  tliat,  considering  the  statements  altogether, 
no  reasonable  man  would  have  acted  upon  the  original  represen- 
tation as  true  ;  and  that  representation  was  upon  these  grounds 
(either  of  which,  according  to  the  judgment  of  the  court,  would 
have  been  sufiicient)  held  not  to  be  conclusive.  This  rule  was 
approved.'^ 

§  756.  In  Cornish  v.  Abington,  the  rule  with  reference  to 
estoppels  of  this  class  was  laid  down  in  very  wide  terhis.  If  a 
party  uses  language  which  business  and  the  general  sense  in  which 
the  words  are  understood,  conveys  a  certain  meaning,  he  cannot 
afterwards  say  that  he  is  not  bound,  if  another  so  understanding 
has  acted  upon  it.  If  any  person  by  a  course  of  conduct  or  by 
actual  expressions  go  conducts  himself  that  another  may  reasona])ly 
infer  the  existence  of  an  agreement  or  license,  whether  the  party 
intends  that  he  should  do  so  or  not,  it  has  the  effect  that  the 
party  using  that  language,  or  who  has  so  conducted  himself, 
cannot  afterwards  gainsay  the  reasonable  inference  to  be  drawn 
from  his  words  or  conduct.^ 

§  757.  The  following  extract  from  the  judgment  in  Swan  v.. 
N.  1>.  Australasian  Co.,^  with  the  comment  on  it  in  the  Exchequer 
Chamber,  contains,  it  is  apprehended,  a  full  and  accurate  state- 
ment of  the  general  rule  now  acted  upon  with  reference  to  estoj}- 
peln  hy  neyligence^  and  of  the  limitations  on  that  rule :  "  The 
rule  of  decision  deduced  from  the  authorities  is  .this,  that  if  a 
man  has  willfully  made  a  false  assertion  calculated  to  lead  others 
to  act  upon  it,  and  they  have  done  so  to  their  prejudice,  he  is 
forbidden  as  against  them  to  deny  that  assertion,  that  if  he  has 
led  others  into  the  belief  of  a  certain  state  of  facts  by  conduct  of 
culpable  neglect,  calculated  to  have  that  result,  and  they  have 
acted   on   that  belief,  to  their   prejudice,  he  shall   not  be  heard 

1  2  Exchq.  654.  D.  673;  Thomas  v.  Brown,  L.  R.  1  Q. 

2  Howard  v.  Hudson,  2  El.  &  B.  1.  D.  714. 

3  Cornish  v.  Abingdon,  4  H.  &  N.  ••  7  H.  &  N.  G03.     S.    P.,   Bank  v. 
549;  Polak   v.  Everett,  L.  R.  1   Q.  B.  Bank.  L.  R.  G  H.  L.  352;  Burkiiishaw 

V.  :Xichols.  L.  R.  3  App.  Cas.  1004. 


Estoppel  iist  Pais.  883 

afterwards  as  against  such  persons,  to  show  that  the  state  of  facts 
did  not  exist.  In  short  and  in  popular  language,  a  man  is  not 
permitted  to  charge  the  consequences  of  his  own  fault  on  others, 
and  complain  of  that  which  he  has  himself  brought  about. 

This  should,  Mr. -Justice  Blackburn  thought,  be  qualified 
"  by  saying  that  the  neglect  must  be  in  the  transaction  itself, 
and  be  the  proximate  cause  of  the  leading  the  party  into  that 
mistake;  and  also  it  must  be  the  neglect  of  some  duty  that  is 
owing  to  the  person  led  into  that  belief,  or,  what  comes  to  the 
same  thing,  to  the  general  public,  of  whom  the  person  is  one,  and 
not  merely  neglect  of  what  would  be  prudent  in  respect  to  the 
party  himself,  or  even  of  some  duty  owing  to  third  persons,  with 
whom  those  seeking  to  set  up  the  estoppel  are  not  privy.'" 

§  758.  Referring  witli  approval  to  Swan  v.  N.  B.  Austral- 
asian Co.,  supra^  in  Halifax  Union  v.  "Wheelhouse,"  the  Court  of 
Exchequer  says :  "It  is  perhaps  only  an  application  of  one  of 
those  general  principles  which  do  not  belong  to  the  municipal 
law  of  any  particular  country,  but  which  we  cannot  help  giving 
effect  to  in  the  administration  of  justice,  viz.  :  that  a  man  cannot 
take  advantage  of  his  own  wrong,  cannot  complain  of  the  conse- 
quences of  his  own  default  against  a  person  who  was  misled  by 
that  default  without  any  fault  of  his  own.  An  estoppel  may  be 
said  to  exist  where  a  person  is  compelled  to  admit  that  to  be  true 
which  is  not  true,  and  to  act  upon  a  theory  which  is  contrary  to 
the  truth.' 

§  759.  The  following  are  recognized  propositions  of  an  estop- 
pel in  pais:  "If  a  man  by  his  M'ords  or  conduct  \villfully 
endeavors  to  cause  another  to  believe  in  a  certain  state  of  things 
which  the  first  knows  to  be  false,  and  if  the  second  believes  in 
such  a  state  of  things  and  acts  upon  his  belief,  he  who  know- 
ingly made  the  false  statement  is  estopped  from  averring  after- 
wards that  such  a  state  of  things  did  not  in  fact  exist.* 

Another  is  :  "  If  a  man,  either  in  express  terms  or  by  con- 
duct, makes  a  representation  to  another  of  the  existence  of  a  cer- 

'  2  H.  &  C.  175;  Johnson  v.  Credit,  ^  L.  R.  10  Excliq.  193. 

&c.  Co.,  L.  R.  3  C.  P.  D.  33;  Baxen-  ^  ijimm  y    Telegraph  Co.,  5  Q.  B. 

dale  V.  Bennett,  L.  R.  3  Q.  B.  D.  535;  D.  188. 

Dickson  v.    Tel.    Co.,  L.  R.  3  C.  P.  *  Brett,  L.  J.,  in  Carr  v.  Ry.  Co., 

D.  1.  L.  R.  10  C.  P.  107. 


884  The  Law   of  Estoppel. 

taiu  state  of  facts  wliicli  lie  intends  to  be  acted  upon  in  a  certain 
way,  and  it  be  acted  upon  in  that  way,  in  the  belief  of  the  exist- 
ence of  such  a  state  of  facts,  to  the  damage  of  him  who  so 
believes  and  acts,  the  first  is  estopped  from  denjdng  the  existence 
of  such  a  state  of  facts. 

Anotlier  is  :  "  If  a  man,  whatever  his  real  meaning  may  be, 
so  conducts  himself  that  a  reasonable  man  would  take  his  conduct 
to  mean  a  certain  representation  of  facts,  and  that  it  was  a  true 
representation,  and  that  the  latter  was  intended  to  act  upon  it  in 
a  particular  way,  and  he,  with  such  belief,  does  act  in  that  way  to 
his  damage,  the  first  is  estopped  from  denying  that  the  facts 
were  as  represented. 

There  is  yet  another.  "  If,  in  the  transaction  itself  which  is 
in  dispute,  one  has  led  another  into  the  belief  of  a  certain  state 
of  facts  by  conduct  of  culpable  negligence,  calculated  to  have 
that  result,  and  such  culpable  negligence  has  been  the  proximate 
cause  of  leading,  and  has  led,  the  other  to  act  by  mistake  upon 
such  belief,  to  his  prejudice,  the  second  cannot  be  heard  after- 
wards as  against  the  first  to  show  that  the  state  of  facts  referred 
to  did  not  exist.' 

§  7<)0.  To  the  above  may  be  added  the  following:*  "  IN^obody 
ought  to  be  estopped  from  averring  the  truth  or  asserting  a  just 
demand,  unless  by  his  acts  or  words,  or  neglect  his  now  averring 
the  truth,  or  asserting  the  demand  would  work  some  wrong  to 
some  other  person,  who  has  been  induced  to  do  something,  or  to 
abstain  from  doing  something  by  reason  of  what  he  had  said  or 
doTie,  or  omitted  to  say  or  do. 

§  761.  The  application  of  these  principles  is  illustrated  in 
the  following  cases  :  Where  there  had  been  a  compulsory  refer- 
ence under  the  English  statutes,  the  award  was  not  made  within 
three  months,  and  the  time  was  not  enlarged  by  the  court  or  a 
judge,  or  by  the  written  consent  of  the  parties.  Both  parties, 
however,  went  before  the  arbitrator  after  the  time  had  elapsed, 
and  the  court  held  that  the  party  against  whom  judgment  liad 
been  signed  upon  the  award  was  estopped  from  taking  advantage 

'  Brett.    L.  J.,  in   Carr  v.  Riiihvay     L.  R.  8  Ch.  D.  817;   Collie,  in  re,  L, 
Co.,  L.  R.  10  C.  P.  107.  R.  8  Ch.  D.  817. 

*  James,  L.  J.,  in  Adamson,  in  re, 


Estoppel  in  Pais.  885 

of  the  non-compliance  with  the  statute.'  So,  where  the  parties 
had  acted  upon  an  oral  consent,  one  who  objected  afterwards  was 
precluded  from  taking  advantage  of  the  want  of  a  writteii  con- 
sent."''  Where  a  part}'  who  has  dealt  with  an  agent  has  hj  his 
conduct  led  the  principal  to  believe  that  he  looked  to  the  agent 
alone  for  payment,  and  thereby  induced  tiie  principal,  after  the 
debt  has  become  due,  either  to  pay  tiie  agent  or  to  allow  him  to 
retain  the  amount  out  of  the  principal's  money,  the  party  so  act- 
ing is  estopped  from  i-esorting  to  the  principal.^  A  vendor,  had, 
by  a  form  of  undertaking,  which  he  had  given  B.,  on  the  faith 
of  which  the  plaintiif  bought  from  the  latter,  estopped  himself 
from  disputing  as  against  the  plaintiff  that  he  had. given  up  his 
lien  as  vendor.^  The  representatives  of  a  deceased  solicitor  were 
held  estopped  as  to  the  fact  that  he  had  advanced  moneys  of  a 
client  upon  a  mortgage.^  So,  where  an  uncle  induced  his  niece 
to  remain  in  his  house,  and  take  care  of  him,  by  promising  verb- 
ally that  he  would  leave  to  her  some  of  his  household  property 
by  will.  He  then  made  a  codicil  to  his  will  in  her  favor,  which 
codicil  he  afterwards  revoked,  and  it  was  held  in  a  suit  brought 
by  the  niece  after  her  uncle's  death,  that  he  had  no  right  to  make 
this  revocation,  and  that  the  trusts  of  the  first  codicil  must  be 
performed.'' 

§  762.  The  exclusive  warrant  for  an  equitable  estoppel  is, 
that  it  is  necessary  to  sustain  the  cause  of  right  and  justice.'' 
Where  the  acts  and  representation  of  a  party  must  have  influ- 
enced the  other  to  do  acts  which  he  would  not  othersvise  have 
done,  and  where  a  denial  or  repudiation  must  operate  to  the  in- 
jury of  such  other  party,  the  estoppel  is  created.  In  discuss- 
ing the  matter  of  estoppel,  the  court  in  Welland  Canal  v.  Hath- 
away,   thus   speaks  of  acts  m  pais :  "  An  estoppel  is  so  called 

'  Tyerman  v.  Smith,  25  L.  J.  Q.  B.  «  Loftus  v.  Maw,  32  L.  J.  Ch.  49; 

359.  and  see  also  Wise  v.  Rhodes,  84  Pa. 

2  Andrews  v.   Elliott,   25  L.  J.  Q.  St.  402. 

B.  1.  ■»  Ferguson  v.    Milliken,    42    Mich. 

^  Macfarlane  v.  Gianiacopulo,  3  H.  441;  Roj'ce  v.  Watrous,  73  N.  Y.  597; 

&  N.  860.  Buckingham  v.    Hanna,    2   Ohio   St. 

<  Farmeloe  v.  Bain,  L.  R.  1   C.  P.  551;   Van   Rensselaer  v.  Kearney,  11 

D.  445.  How.    297;    De    Mill    v.   Moffatt,   49 

5  Middleton  v.  Pollock,  L.  R.  4  Ch.  Mich.  441. 
D.  49. 


The  Law  of  Estoppel. 


because  a  man  is  excluded  from  saying  anything,  even  the  truth, 
against  his  own  act  or  admission.  The  acts  set  up  in  this  case, 
it  is  not  pretended,  constitute  a  technical  estoppel,  which  can  only 
be  by  deed  or  matter  of  record.  But  it  is  said  they  should  oper- 
ate by  way  of  estoppel — an  estoppel  in  j)ais.  Such  estoppels 
cannot  be  pleaded,  but  are  given  in  evidence  to  the  court  and 
pny,  and  may  opei'ate  as  effectually  as  a  technical  estoppel  under 
the  direction  of  the  court.  There  are  many  acts  which  have  been 
adjudged  to  be  estoppels  inj)ais,  such  as  livery,  entry,  accept- 
ance of  rent,  &c.,  but  in  many  and  probably  most  instances, 
whether  the  act  or  admission  shall  operate  byway  of  estoppel  or 
not,  must  depend  upon  the  circumstances  of  the  case.  As  a 
general  rule,  a  party  will  be  concluded  from  denying  his  own 
acts  or  admissions  which  were  expressly  designed  to  influence  the 
conduct  of  another,  and  did  so  influence  it,  and  when  such  denial 
will  operate  to  the  injnry  of  the  latter.'" 


'  Canal  Co.  v.  Hathaway,  8  "Wend. 
483;  Morton  v.  Hogdon,  33  Me.  137; 
Cummings  v.  Webster,  43  Me.  193; 
Sullivan  v.  Parks,  33  Me.  438;  Taylor 
V.  Ely,  25  Conn.  250;  Copeland  v. 
C'lpeland,  38  Me.  525;  Preston  v. 
3Iaun,  25  Conn.  118;  Miller  v.  Bing- 
liain,  29  Vt.  82;  Downer  v.  Flint,  28 
Vt.  527;  White  v.  Langdon,  30  Vt. 
599;  Strong  v.  Elswortli,  26  Vt.  366; 
People  V.  Brown  67  111.  435;  Peters 
V.  Jones,  35  Iowa,  513;  Crawford 
V.  Gunn,  35  Iowa,  543;  Drake  v. 
Wise,  36  Iowa,  476;  Smith  v. 
Penny,  44  Cal.  161;  Dresbach  v. 
Miunis,  45  Cal.  233;  May  v.  R.  R.  Co., 
48  Ga.  109;  Thomas  v.  Pullis,  56  Mo. 
211;  Att'y  Genr'I  v.  Stephens,  1  K.  & 
J.  74:  Harrison  v.  Wright,  13  M.  & 
W.  83;  Miles  v.  Furber,  L.  R.  8  Q.  B. 
77;  Carroll  v.  R.  R.,  Ill  Mass.  1; 
Counihan  v.  Thompson,  111  Mass. 
270;  Rice  v.  Baruett,  116  Mass.  313; 
Hexter  v.  Knox,  39  N.  Y.  Sup.  Ct. 
109;  Griswold  v.  Haven,  25  N.  Y. 
595;  Bodine  v.  Killeen.  53  N.  Y.  93; 
Chapman  v.  Race,  56  N.  Y.  137;  Dil- 


lett  V.  Kemble,  25  N.  J.  Eq.  66; 
Beaupland  v.  McKeen,  28  Pa.  St.  124; 
Phillips  v.  Blair,  38  Iowa,  649;  Sura- 
mersville  v.  R.  R.  Co.,  63  Mo.  391; 
St.  Louis  V.  Shields,  03  Mo.  247; 
Grace  v.  McKissock,  49  Ala.  163; 
Weedon  v.  Landraux,  26  La.  An.  729; 
Snow  V.  Walker,  42  Tex.  154;  Graves 
V.  Key,  3  B.  &  P.  318;  Barrow  v. 
Cobleigh,  11  N.  H.  559;  Dewey  v. 
Field, 4  Met.  381;  Zuchtmanv.  Roberts, 
108  Mass.  53;  Dock  Co.  v.  Leavitt,  54 
N.  Y  35;  Stevens  v.  Baird,  9  Cow. 
274;  Barnard  v.  Campbell,  55  N.  Y. 
456;  Comstick  v.  Smith,  26  Mich.  300; 
Devereaux  v.  Bengwyn,  5  Ired.  85; 
Lawrence  v.  Brown,  5  N.  Y.  374; 
Duel  V.  Bear  River  Co.,  5  Cal.  86; 
McCune  v.  McMichael,  29  Ga.  313; 
Otis  v.  Sill,  8  Barb.  108;  Dyer  v.  Cady, 
20  Conn.  568;  Taylor  v.  Ely,  25  Conn. 
258;  Roe  v.  Jerome,  18  Conn.  138; 
Whittaker  v.  Williams,  20  Conn.  98; 
Patterson  v.  Lytle,  11  Pa.  St.  56; 
Rogers  v.  Farwell,  9  Barb.  618;  Huntly 
V.  Harney,  15  Ala.  105;  Carter  v. 
Darby,  15  Ala.  696;  Brewer  v.  Brewer, 


Estoppel  in  Pais, 


887 


§  763.  Before  the  party  is  concluded  by  an  estoppel,  it  must 
appear,  first,  that  he  has  made  an  admission  which  is  clearly 
inconsistent  with  the  evidence  he  proposes  to  give,  or  the  title  to 
the  claim  he  proposes  to  set  np.  Second,  that  the  other  party 
has  acted  on  the  admission.'  Third,  that  the  other  party  will 
be  injured  by  allowing  the  truth  of  the  admission  to  be  disproved." 
Thus,  where  A.  executed  his  note  to  B.  for  $778,  B.  with  the 
intent  to  defraud  another,  surrendered  the  note  to  A.  with  an 
agreement  tiiat  it  should  be  accounted  for,  B.  died,  and  bill  was 
filed  by  his  administrator  to  compel  A.  to  account.  Neither  at 
law  or  equity,  could  B.  or  his  administrator,  or' distributees,  hold 
A.  accountable,  and  that  they  were  alike  estopped  by  the  fraudu- 


19  Ala.  105;  Letcher  v.  Morrison,  27 
111.  214;  Thomas  v.  Bowman,  29  111. 
429:  Frost  v.  Ins.  Co.,  5  Denio,  154; 
Lawrence  v.  Brown,  5  N.  Y.  394; 
Brown  v.  Bowman,  30  N.  Y.  519;  St. 
John  V.  Roberts,  31  N.  Y.  441;  Jewett 
V.  Miller,  10  N.  Y.  402;  Malloney  v, 
Horan,  49  N.  Y.  Ill:  Hurd  v.  Kelley, 
78  N.  Y.  588;  Waring  v.  Sornborn,  83 
N.  Y.  604;  Titus  v.  Morse,  40  Me.  848; 
Brinkerhoff  v.  Brinkerhoff,  23  N.  J. 
E.  477. 

1  Eld  red  v.  Hazlett,  33  Pa.  St.  307 
Simons  v.  Steele,  36  N.  H.  473 
Water's  Appeal,  35  Pa.  St.  523 
Commonwealth  v.  Motz,  10  Pa.  St 
521;  Whittacre  v.  Culver,  8  Minn 
133;  McCabe  v.  Rainey,  32  Ind.  309 
Martin  v.  Iligbter,  10  N.  J.  L.  510 
Thompson  v.  Thompson,  9  Ind.  323 
Thorn  v.  Bell,  Hill  &  D.  430;  Bean  v. 
Pettingill,  7  Rob.  (N.  Y.)  7;  Copeland 
V.  Copeland,  28  Me.  525;  Hefner  v. 
Vandolah,  57  111.  520;  Winchell  v. 
Edwards,  57  111.  41;  Simpson  v.  Pear- 
son, 31  Ind.  1;  Sprulock  V.  Sproule, 
72  Mo.  509;  Darragh  v.  Bryant,  56  Pa. 
St.  69;  McKinzie  v.  Steele,  18  Ohio 
St.  38;  Acton  v.  Dooley,  74  Mo.  63; 
Taylor  v.  Zepp,  14  Mo.  483;  Bales  v. 
Perry,  51  Mo.  449. 

2  Sexton  V.    Dodge,    57    Barb.   84  ; 
Martin  v.  Angell,  7  Barb.  407;  Shapley 


V.  Abbott,  43  ]Sr.  Y.  443;  McMaster  v. 
Ins.  Co.,  55  N.  Y.  223;  Otis  v.  Sill,  8 
Barb.  102;  Hawes  v.  Merchant,  1  Cur- 
tis, 136;  Jewett  v.  Miller,  10  K  Y. 
402;  Carpenter  v.  Still  well,  11  N.  Y. 
61;  Andrews  v.  Ins.  Co.,  85  N.  Y. 
334;  Boerum  v.  Schenck,  41  N.  Y.  183; 
Stoughton  V.  Lynch,  8  Johns.  Ch.  209; 
Fox  V.  Heath,  10  Abb.  Pr.  163;  Bank 
V.  Webb,  36  Barb.  291;  R.  R.  Co.  v. 
Valentine,  19  Barb.  484;  Sparrow  v. 
Kingman,  1  N.  Y.  242;  Ackley  v 
Dygert,  33  Barb.  176;  Alexander  v. 
Walter,  8  Gill,  239;  Catlin  v.  Grote. 
4  E.  D.  Smith,  296;  Fitts  v.  Brown, 
30  N.  H.  393;  Mallony  v.  Horan,  13 
Abb.  P.  (N.  S.)289:  Simpson  v.  Pear- 
son, 31  Ind.  1 ;  McKinzie  v.  Steele,  18 
Ohio  St.  38;  Donaldson  v.  Hall,  3 
Daly.  325;  State  v.  Pepper,  31  Ind. 
76;  Davies  v.  Haywood,  64  N.  C. 
83;  Mecouch  v.  Loughery,  12  Phila. 
416;  Diller  v.  Brubaker,  52  Pa.  St. 
498;  Ryers  v.  Farwell,  9  Barb.  615; 
Lawrence  v.  Brown,  5  N.  Y.  394; 
Keeler  v,  Davis,  5  Duer,  507;  Pickard 
V.  Sears,  6  A.  &  E.  469;  McClelland 
V.  Kennedy,  8  Md.  230;  Watson  v. 
Hewitt,  45  Tex.  422;  Reeves  v.  Mat- 
thews, 17  Ga.  449;  Piper  v.  Gilmore, 
49  Me.  149;  Clark  v.  Coolidge,  8  Kas. 
189;  Davidson  v.  Young,  38  111.  145; 
Stringer  v.  Ins.  Co.,  82  Ind.  100. 


888  The  Law  of  Estoppel. 

lent  surrender  of  the  note'  And  where  a  party  admits  that  a 
certain  amount  is  due,  and  upon  that  admission  the  agent  of  the 
ph\iiitiff  makes  afiidavit  of  attacliment  on  the  strengtii  of  sucli 
admission  ;  on  a  motion  to  dissolve,  he  is  estopped  from  showing 
that  a  less  sum  was  due  tlian  admitted."  So,  where  one  who  has 
extended  his  execution  upon  land,  obtains  judgment  for  posses- 
sion in  a  suit  against  the  execution  debtor  and  one  to  whom  he 
has  fraudulently  conveyed  the  land,  the  debtor  is  estopped  by 
such  judgment,  to  set  up  title  afterwards  for  himself  or  creditors 
on  the  ground  that  the  execution  creditor  got  the  land  by  a 
fraudulent  use  of  a  judgment  confessed  by  the  debtor.'  Thus 
where  a  deed  held  as  an  escrow  was  delivered  to  the  grantee  in 
violation  of  the  instructions  of  the  grantor,  and  the  deed  was 
recorded  and  possession  retained  for  seven  months  by  the  grantee, 
who  then  conveyed  to  an  innocent  purchaser  for  a  valuable  con- 
sideration, the  grantor  was  then  estopped  to  assert  title  against 
such  purchaser ;  and  that  he  was  affected  by  the  knowledge  of 
his  attorney  that  his  instructions  had  been  violated  in  the  delivery 
.  of  the  deed."  So  a  party  visiting  the  board  of  trade  on  a  visitor's 
ticket,  and  who  when  there  undertakes  to  exercise  the  rights  of  a 
member  of  the  board,  and  permits  another  to  deal  with  him  as 
such,  is  estopped  to  deny  that  he  is  a  member,  and  thereby 
relieve  himself  from  the  responsibilities  which  would  rest  on 
members  of  the  board  dealing  in  the  same  maimer.*  Thus,  where 
a  pai'ty  is  induced  to  delay  suing  by  defendant's  agreeing  to  sub- 
mit the  controversy  to  arbitration,  and  to  abide  by  and  perform 
the  awai'd,  which  he  does  not  do,  these  facts,  though  not  an 
exception  recognized  in  the  statute"  of  limitations,  yet  may  estop 
the  defendant  from  setting  up  the  statute.^  If  the  payee  of  a 
note  leads  the  maker  to  believe  that  an  attorney  has  autliority  to 
settle  the  debt  without  having  the  note  in  his  possession,  and  the 
maker  acts  upon  the  belief  so  induced,  a  settlement  made  by  the 
attorney   will   be   binding,   although   no  authority  is  ever  con- 


>  Mulloy    V.    Young,    10    Humph.  *  Haven  v.   Kramer,  41   Iowa,  383. 

298.                    "  '  Packing    Co.    v.    Tilton,   87  111. 

»  Zinn  V.    Dzialynski,    18  Fla.  597.  547. 

3  Franklin  v.  Stagg,  22  Mo.  193.  «  Davis  v.  Dyer,  56  N.  H.  148. 


Estoppel  in  Pais 


889 


ferred  upon  him  and  the  maker  knows  that  the  attorney  lias  not 
the  note.' 

§  764.  Admissions,  whether  of  law  or  of  fact,  which  have 
been  acted  upon  by  others,  are  conclusive  against  the  party 
making  them,  in  all  cases  between  him  and  the  person  whose 
conduct  he  has  thus  influenced.  It  is  of  no  importance  whether 
they  were  made  in  express  language  to  the  person  himself,  or 
implied  from  the  open  and  general  conduct  of  the  party.  It 
makes  no  difference  in  the  operation  of  this  principle  whether  the 
thing  admitted  be  true  or  false  ;  it  being  the  fact  that  it  has  been 
acted  upon  that  renders  it  conclusive.'^ 

§  765.  A  person  may  be  estopped  by  his  conduct,  whether  or 


'  Tappan  v.    Morseman,  18   Iowa, 
499. 

2  Dewey  V.  Field,  4  Met.  381;  Cok- 
ke    V.     Knykendall,      41     Miss.     65; 
Bower  v.  Buck,  23  Vt.  308;  Uigney  v. 
Smitb,    39    Barb.   393;    Chiapella    v. 
BrowQ,  14  La.  An.  189;  Stone  v.  Dun- 
kin,  2  Camp.  344;  Chapman  v.Searlcs, 
3  Pick.  38:  Heune  v.  Rogers,   8  B.  «& 
C.    577;    Bank  v.    Leonard,    43    Me. 
344;    Bemls  v.   Becker,    1   Kas.  226 
McClelland  v.  Kennedy,   8   xMd.  2;J0 
Moore  v.  Bowman.   47   N.     H.    494 
Ryerss   v.  Farwell,  9  Barb.  G15;  Stan- 
ley V.    Green,  12  Cal.    148;  Duel   v. 
Bear,  &c.  Co.,  5  Cal.    84;  Pounds  v. 
Richards,    21   Ala.  424;  Judovind  v. 
Goodrich,  35   Vt.   19;  Calauun  v.  Mc- 
Clure,  47    Barb.    206;    Campbell    v. 
Mayes,  38   Iowa,  9;  Peters  v.    Jones, 
35  Iowa,  512;  Cave  v.  Mills,  7    H.  & 
N.  913;  James  V.    R.  R.  Co.,  9  Rich. 
L.    416;  Bank  v.    King,   3  Rob.  (La.) 
243;  West  v.  Jones,  1  Sim.  N.  S.  207 
Tappan   v.  Morseman,  18  Iowa,  499 
Payne   v.    Buruham,    62  N.   Y.  691 
]\niler  V.    Moore,  3  Jones    Eq.  431 
Roberts  v.  Wilkinson,  34  Mich.    129 
Tompkins   v.    Phillips,    12    Ga.    52 
W^aterman  v.   Johnson,  49  3Io.    410 
McCance  v.  R.  R.  Co.,  7  II.  &  N.  477 


Bank  v.  Wollaston,  3  Harring.  90; 
Newton  v.  Belcher,  12  A.  &  E.  (N.  S.) 
921;  Kinney  v.  Farnsworth,  17  Conn. 
355;  Taylor  v.  Ashworth,  11  M.  &  W. 
415;  Evans  V.  Edwards,  13  C.  B.  786; 
Thorn  v.  Bigland,  8  Exchq.  725; 
Gillespie  v.  Carpenter,  25  How.  P. 
203;  Hutton  v.  Rossiter,  7  D.  M.  & 
G.  723;  Lewis  v.  Castleman,  27  Tex. 
422;  Rawlins  v.  Wickham,  3  D.  &  J. 
304;  Horsfall  V.  Banking  Co.,  52  L. 
J.  Ch.  599;  Evans  v.  North.  &c.  Co., 
2  H.  &  C.  182:  Smith  v.  Smith,  31 
Conn.  Ill;  Ives  v.  North,  33  Conn. 
400;  R.  R.  Co.,  in  re,  1  Low. 
345;  Ayer  v.  Tilton,  42  N.  H.  407; 
Fly  v.  College,  2  Snced,  689;  Tainter 
V.  Winter,  53  Me.  348;  Gregg  v.  Van 
Phull,  1  Wall.  274;  Jeiuiess  v.  Berry, 
17  N.  H.  549;  Slanwood  V.  McClellan, 
48  Me.  275;  Ashpitel  v.  Bryan,  3  B.  & 
S.  474;  Dahlman  v.  Foster,  55  Wis. 
382;  Cartright  v.  Green,  47  Barb.  9; 
Bank  v.  Scofield,  39  Vt.  590;  Hostler 
V.  Hays,  3  Cal.  302;  Hartley  v. 
Franks,  18  La.  An.  559;  Markham  v. 
Hunnicutt,  43  Ga.  1;  Salmond  v. 
Price,  13  Ohio,  368;  Jarboev.  Colvin, 
4  Bush, 70;  Cornell  v.  Masten,  35  Barb. 
157;  Eshardt  v.  Board,  8  F.  R.  860; 
Barrow's  Case,   L.  R.  14  Ch.  D.  432. 


890  The  Law  of  Estoppkl. 

uot  he  intended  that  others  should  act  upon  the  strength  of  it,  if 
it  authorized  the  belief  that  such  was  his  intention.'  Thus  a 
Imsband  assisting  in  the  purchase,  assessment,  and  mortgage  of 
property  iai  iiis  wife's  name,  is  estopped  from  setting  up  any  title 
therein  to  the  prejudice  of  her  judgment  creditor.'  So  where 
two  tenants,  occupied  separate  floors  of  the  same  building,  and 
one  allowed  the  other  to  believe,  before  he  took  the  lease  that  he 
would  not  object  to  his  putting  a  sign  on  the  balcony  of  the 
second  floor,  cannot  thereafter  restrain  the  party  from  putting  up 
such  sign.^  Where  the  heirs  of  a  testator  permitted  his  widow 
who  was  executrix  to  regard  certain  funds  as  her  own,  under  the 
will,  they  cannot  subsequently  maintain  a  claim  based  on  a  con- 
trary assumption.*  Where  a  Canal  Co.  had  been  in  possession  of 
water  for  twenty  years,  and  had  been  in  litigation  prior  to  that 
time  with  the  riparian  owner,  who  knew  the  company  were 
about  to  lease  its  works,  and  took  no  measures  to  revive  the 
litigation,  or  to  give  notice  of  his  claim  before  the  lease  was 
given  ;  such  owner  has  no  sufficient  standing  in  a  court  of  equity 
to  enjoin  suits  at  law,  calling  in  question  the  right  to  such  water/ 
So  a  grantee  who  knows  that  parties  are  in  adverse  possession  but 
never  intimate  that  he  has  any  title ;  can  not  to  the  prejudice  of 
such  parties  thereafter  assert  it.*  So,  where  a  party  permits  others 
to  cut  wood  from  his  land  without  forbidding  it ;  as  the  owner 
would  be  estopped,  his  administrator  is  likewise.'  So,  M'here  a 
party  made  a  verbal  contract  with  his  brother  to  purchase  a  tract 
of  land,  paid  part  of  the  purchase  money,  went  into  possession, 
erected  a  dwelling  house  and  occupied  it  continuously  from  that 
time  ;  the  vendor  thirteen  years  afterwards,  executed  three  mort- 
gages covering  the  whole  tract,  the  first  of  which  was  foreclosed, 
the  holder  of  the  other  two  mortgages  becoming  the  purchaser  at 
the  sale.  Two  years  after  the  mortgages  were  made,  and  the  same 
period  of  time  before  the  foreclosure  suit  was  brought,  the  pur- 


'  Tiffaii}'^    V.    Anderson,   55    Iowa,  1036. 
405;    Stewart  v.    Maix,   30  La.    Ann.  »  Garrett  v.  ^lulligan,  10  Pliila.  339. 

1036;  Garrett  v.  Mulligan,  10  Pliila.         •'Payne  v.  Payne,  5  ]\Io.  App.  188. 
839;  Payne  v.  Payne,  5  Mo.  App.  188;         «  Society  v.  R.  R.  Co.,  33   N.  J.  E. 

Goodman  v.  AViuLer,  64  Ala.  410;   R.  329. 
R.  Co.  V.  Chamberlain,  84  111.  333.  «  Baker  v.  Humphrey,  101  U.S.  494. 

'  Ste-wart    v.    Maix,   30  La,    Ann.  ''  McKellop  v.  Jackson,  50  Vt.  71. 


Estoppel  in  Pais 


891 


chaser  made  a  search  of  the  records  and  discovered  their  exist- 
ence ;  he  also  knew  of  the  subsequent  advertisement  of  the 
premises  for  sale  under  the  foreclosure,  and  consulted  counsel  in 
regard  to  it,  but  took  no  steps  to  protect  his  rights  not  even 
giving  notice  of  it  at  the  foreclosure  sale.  He  was  estopped 
from  setting  up  any  claim  to  relief  against  the  purchaser  under 
the  mortgage  foreclosure.' 

§  766.  Whenever  one  of  two  innocent  persons  must  suffer  bj 
the  acts  of  a  third,  he  who  has  enabled  such  third  person  to 
occasion  the  loss  must  sustain   it."     For  example  plaintiffs  had 


'  Collier  v.  Pfenning,  34  N.  J.  E. 
23. 

"  Broom's  Legal  Max.  686;  Lick- 
barrow  V.  Mason,  2  Term  R.  70 ;  Bank 
V.  Davis,  2  Hill,  461:  Bank  v.  Bank, 
10  Wallace,  646;  Busey  v.  Reese,  38 
Md.  264;  Bank  v.  Beard,  7  III.  App. 
80;  Overton  v.  Mathews,  35  Ark.  146; 
S.  C,  37  Am.  R.  9;  Wood  v.  Bank, 
129  Mass.  358;  S.  C,  37  Am.  R.  366; 
Wilcox  V.  Aultman,  35  Ark.  146;  S. 
C,  37  Am.  R.  92;  Jordan  v.  Brown, 
5G  Iowa,  28;  Young  v.  Wood,  11  B. 
Mon.  123;  Briggs  v.  Rice,  130  Mass. 
50;  Bank  v.  Beatty,  30  N.  J.  Eq.  126; 
Yiele  v.  Judson,  15  Hun,  328;  Smith 
V.  Keohane,  6  111.  App.  585;  West- 
brook  V.  Gleason,  79  N.  Y.  23;  Smith 
V.  Peoria  Co.,  59  111.  412;  Nicholson 
V.  Hooper,  4  M.  &  C.  179;  Evans  v. 
Bicknell,  6  Ves.  173;  Attenborough  v. 
Dock  Co.,  38  L.  T.  R.  N.  S.  404;  Ne- 
ville V.  Wilkinson.  1  Bro.  Ch.  388; 
Pearson  v.  Morgan,  2  Bro.  Ch.  388; 
Scott  V.  Scott,  1  Cox,  378;  Bronsou  v. 
Chappell,  12  Wall.  681;  Caldwell  v. 
Neill,  21  La.  Ann.  342;  Lister  v.  Al- 
len, 31  Md.  543;  Ni.Kon  v.  Brown,  57 
N.  H.  4;  Hearn  v.  Nichols,  1  Salk. 
289;  Orleans  v.  Piatt,  99  U.  S.  676 
Denton  v.  Cole,  30  N.  J.  Eq.  245 
Ormsby  v.  Ihmsen,  34  Pa.  St.  462 
Hanen  v.  Kramer,  41  Iowa,  342 
Bhght  V.    Schenck,    10  Pa.    St.   285 


Stone  V.  Marye,  14  Nev.  362;  Baily 
v.  Crim,  6  Sawy.  424  ;  Wright  v. 
Flyn,  33  Iowa,  159;  Babcock  v.  Law- 
son,  L.  R.  4Q.  B.  394;  S.  C,  20  A.  L. 
J.  407;  Moyce  v.  Newington,4  L.T.  R. 
N.  S.  Q.  B.  535 ;  Vickers  v.  Hertz,  L.  R. 
2  H.  L.  S.  C.  115;  Root  v.  French,  13 
Wend.  570;  Knights  v.  Wiflfens,  23  L. 
T.  R.  610;  White  v.  Garden,  10  C.  B. 
919;  McClelland  v.  Bartlett,  13  111. 
App.  326;  Spalding  v.  Drew,  55  Vt. 
253;  Pcake  v.  Thomas,  39  Mich.  584; 
R.  R.  V.  Bank,  60  Md.  36;  R.  R.  Co.'s 
App.,  86  Pa.  St.  80;  Stewart  v.  Reed, 
91  Pa.  St.  290;  Wood  v.  Smith,  92  Pa. 
St.  379;  Levy  V.  Nav.  Co.,  34 La.  Ann. 
180;  Wood's  Appeal,  92  Pa.  St.  379; 
S.  C,  37  Am.  R.  694;  Jeffers  v.  Gill, 
91  Pa.  St.  290;  Rogers  v.  Whitehouse, 
71  Me.  222;  Allen  v.  Maury,  66  Ala. 
10;  Conway  Co.  v.  R.  R.,  39  Ark.  50; 
Ellis  v.  Fertilizing  Co.,  64  Ga.  571; 
Wells  V.  Su-ton,  85  Ind.  70;  McNeil 
v.  Jordon.  28  Kas.  7;  Chapman  v. 
Rose,  56  N.  Y.  137;  Robins  v.  Tod- 
man,  28  Kas.  491;  Swartz  v.  Chicker- 
ing.  58  Md.  290;  Vaimeter  v.  Cross- 
man,  42  Mich.  465;  Stebbins  v.  Walker, 
46  Mich.  5;  Mackey  v.  Peterson,  29 
Minn.  298;  Shirts  v.  Overjohn,  60  Mo. 
303;  Frank  v.  Lillienthal,  33  Gratt. 
377;  Whitney  v.  Armour,  4  Lea,  686; 
Ross  v.  Swan,  7  Lea,  463;  Bank  v. 
Wentworth,  L.  R.  5  Ex.  D.  96;  Rob 


892  The  Law  of  Estoppel. 

lent  to  D.  tlicir  acceptances  for  £11,500,  taking  a  memorandum 
in  tliis  form  :  •■'  As  security  for  tlie  due  fulfillment  on  our  part 
of  this  undertaking,  we  have  warelioused  in  your  name  sundry 
lots  of  flour,  and  in  consideration  of  your  delivering  to  us,  or  our 
order,  said  flour  as  sold,  we  further  undertake  to  specilically  pay 
you  proceeds  of  all  sales  thereof  immediately  on  their  receipt." 
This  undertaking  was  reiiewed  upon  the  acceptances  falling  due. 
Subsequently  the  defendants,  in  entire  ignorance  of  the  above 
facts,  and  believing  tlie  flour  to  be  the  property  of  D.  agreed  to 
advance  a  sum  of  £2,500  on  the  security  of  the  flour,  but  on  the 
terms  that  they  were  to  have  absolute  possession  of  the 'flour  and 
to  have  power  to  sell  it,  D.  then  fraudulently  misrepresented  to 
plaintifiFs  that  the}''  had  found  a  purchaser  for  the  flour  and  would 
hand  over  to  them  the  amount  received  as  the  price  ;  whereupon 
the  plaintiffs  were  induced  to  ])art  with  the  possession  of  the 
flour,  and  for  that  purpose  gave  a  delivery  order  to  D.  The 
defendants  liaving  obtained  possession  of  the  flour  and  sold  it, 
this  action  was  brought  to  recover  its  value.  Held^  that  as  the 
flour  had  been  given  up  by  the  plaintiffs  to  D.  conformably  to 
the  contract  to  sell  as  their  own,  the  special  property  vested  in 
the  plaintiffs  as  pledgees,  if  any,  was  intentionally  surrendered, 
and  though  such  surrender  might  have  been  revoked  as  having 
been   obtained  by  fraud  so  long  as  the  goods  remained  in  the 


ertson  v.  Hay,  91  Pa.  St.  242;  Mun-  Bank,  50  N.  Y.  575;  Blair  v.  Wait, 
dorf  V.  Wickersham,  6y  Pa.  St.  87;  69  N.  Y.  113;  Coleman  v.  Pearcc,  26 
Bank  v.  Bank,  1  Pars.  Eq.  (Pa.)  248;  Minn.  123;  Bank  v.  Hazard,  30  N. 
Hutchinson  v.  Gill,  91  Pa.  St.  255;  Y.  226:  Gass  v.  Hampton,  16  Xev. 
WetlioriU's  App.,  3  Grant  Cas.  281;  185;  Stone  v.  Brown,  54  Tex.  430; 
Page  V.  Arnim,  29  Tex.  72;  Raley  v.  Roy  v.  McPherson,  11  Neb.  197;  Mc- 
Williams,  73  Mo.  310;  McCormack  v.  Caskill  v.  Lalbrop,  63  Ga.  96:  Kum^ 
Kimmell,  4  111.  App.  121;  Gheen  v.  ball  v.  Bank,  2  Q.  B.  D.  194;  Good- 
Osborne,  11  Heisk.  61;  McKellop  v.  win  v.  Robarts,  1  App.  Cas.  476;  State 
Jackman.  50  Vt.  71;  Morris  v.  Pres-  v.  Dent,  18  Mo.  313;  State  v.  Galves- 
ton, 93  111.  215;  McLain  v.  Dow,  42  ton,  38  Tex.  12;  R.  R.  Co.  v.  Liiidell, 
Wis.  610;  S.  C,  37  Am.  R.  094;  Rudd  39  Mo.  329;  Lee  v.  Munroe,  7  Crauch, 
V.  Mathews,  79  Ky.  479;  S.  C,  42  366;  Hill  v.  Marshall,' 12  Iowa,  142; 
Am.  R.  231;  Mowry's  Appeal,  94  Pa.  State  v.  Hastings,  10  Wis.  518;  Balti- 
St.  376;  Tucker  v.  Bank,  58  N.  H.  more  v.  Reynolds,  20  Md.  1;  Cler- 
83;  S.  C,  42  Am.  R.  580;  Burton's  montel's  Estate,  12  Phila.  129;  Saivyer 
Appeal,  93  Pa.  St.  214;  Pence  v.  v.  Perry,  62  Iowa,  238;  Allen  v. 
Arbuckle,    22    Minn.    417  ;    Bank  v.  ^Volherspoon.  56  N.  Y.  Super.  417. 


Estoppel  in  Pais.  893 

hands  of  the  pledgors,  when  once  the  property  in  them  had  been 
transferred  for  good  consideration  to  a  honafide  ti'ansferee,  the 
latter  acquired  an  indefeasible  title.  Held,  also,  that  the  plaint- 
iffs, having  put  it  in  the  power  of  D.  to  commit  the  fraud,  must 
be  the  sufferers  rather  than  the  defendants,  who  were  merely 
innocent  transferees  for  value.^ 

§  767.  A  party  who  places  another  in  a  position  to  enable  him 
to  commit  a  fraud  should  suffer  the  loss,  rather  than  an  innocent 
person  who  deals  with  him  on  the  faith  of  the  usual  indicia  of 
ownership  with  which  the  true  owner  has  invested  him.  Where 
a  party  invests  an  agent  with  all  the  evidence  of  absolute  title  to 
negotiable  paper,  and  thereby  empowers  him  to  wrong  either  the 
principal  or  others,  and  he  disposes  of  the  same  as  his  own  to  an 
innocent  party,  and  fails  to  account  therefoi-,  the  party  so  trusting 
must  bear  the  loss.*  Bills  and^iotes,  certificates  of  stock,  &c., 
indorsed  in  blank,  like  bank  bills,  treasury  warrants,  and  notes 
payable  to  bearer,  pass  by  mere  delivery,  and  where  such  paper 
is  offered  in  payment,  or  for  sale,  the  person  taking  or  purchasing 
it  is  not  bound  to  inquire  as  to  the  title  of  the  holder,  unless  he 
has  notice  or  knowledge  of  facts  which  on  inquiry  would  lead  to 
notice.  Thus,  where  the  payee  of  two  promissory  notes  of  $5,000 
eacli,  indorsed  the  same  in  blank,  and  placed  them  in  the  hands 
of  a  banker  as  her  agent,  to  collect  the  interest  due  thereon,  and 
to  sell  the  same  for  her  benefit,  and  such  agent  pledged  the  same 
to  secure  a  debt  owing  by  him  to  another  bank  and  for  future 
advances,  there  being  nothing' to  put  the  latter  bank  on  inquiry  or 
excite  suspicion,  it  was  held,  that  the  pledgee  having  acquired  tlie 
same  in  good  faith  in  the  usual  course  of  business  from  one 
apparently  the  owner  and  clothed  with  indicia  of  ownership, 
could  not  be  divested  of  his  right  to  the  notes  by  the  real  owner 


1  Babcock  v.  Lawson,  L.  R.  4Q.  B.  C,  37  Am.  R.  694;  Coombs  v.  Chand- 

D.  394;  S.  C,  20  Alb.  L.  J.  407.  ler,  33  Ohio  St.  178;  Tucker  v.  Bank, 

^Gass  V.   Hampton,    16  Nev.  185;  58  N".  H.  83;    S.  C,  43  Am.   R.  580; 

Rumball  v.   Bank.  L.  R.  2  Q.    B.  D.  Dyer  v.  Pearson,  3  B.  &  C.  38;  John- 

194;  Vickers  v.  Hertz,  L.  R.  3  H.  L.  C.  sou  v.  Lyonnais  Co.,  L.  R.  3  C.  P.  D. 

113;  Goodwin  V.Roberts,  L.  R.  1  App.  32;  Banking   Co.,  in  re,   L.  R.   3  Ch. 

Cas.  470;  Locke  v.  Lewis,  124  IMass.  App.  154;  Hentz  v.  Miller,  94  N.  Y. 

1;  Woods'  Appeal,  92  Pa.  St.  379;  S.  64. 


894  The  Law  of  Estoppel. 

thereof.*  So  where  certificates  of  mining  stock,  indorsed  by  the 
trustees  in  whose  name  they  were  issued,  were  by  S.  delivered  as 
collateral  security  to  M.,  and  by  M.  to  G.,  who  knew  tliat  M.  so 
held  them.  After  S.  had  tendered  to  M.  and  G.  tlie  full  amount 
of  her  indebtedness,  G.  employed  a  broker  to  sell  the  stock,  who, 
not  aware  of  S.'s  title,  sold  the  certificates  and  placed  the  proceeds 
to  G.'s  credit.  Held,  that  S.  was  estopped  from  asserting  the 
title  as  against  the  broker.^  Where  a  partnership  so  entrusts 
goods  of  the  firm  to  a  member  thereof,  so  as  to  enable  him  to 
deal  with  the  property  as  his  own,  and  the  public  is  thereby 
induced  to  regard  him  as  the  owner  tliereof,  and  he  disposes  of 
the  property  in  satisfaction  of  his  individual  indebtedness  to  a 
honajide  purchaser  without  notice  of  the  rights  of  the  firm,  such 
sale  is  valid  against  the  firm  and  its  members.^ 

§  768.  "  The  doctrine  of  aaquiescence  is  well  recognized  in 
the  law  as  an  admission  by  the  party.  But  to  have  that  efi'ect,  it 
must  exhibit  some  act  of  the  mind  and  amount  to  voluntary 
demeanor  or  conduct  of  the  part}^  and  whether  it  is  acquiescence 
in  the  conduct  or  language  of  others,  it  must  plainly  appear  that 
such  conduct  was  fully  known,  or  the  language  fully  understood 
bj'  the  party,  before  any  inference  can  be  drawn  from  his  pas- 
siveness  or  silence.  But  where  tliose  ingredients  are  found,  the 
acquiescence  becomes  as  binding  as  any  other  admission  of  a 
party.*  Thus,  the  entry  on  an  account  book  against  a  particular 
person,  or  making  out  a  bill  of  parcels  in  his  name,  is  an  admis- 
sion that  the  goods  were  furnished  on  his  credit.^  So  where  A. 
pointed  out  one-fifth  of  certain  property  as  belonging  to  the 
defendant  in  an  execution,  A.  owning  the  other  four-fifths,  he  is 

•  Morris  v.  Preston,  93  111.  215;  Jacksoa  v.  Vedder,  2  Caines,  211; 
Burton's  Appeal,  93  Pa.  St.  214.  Canal  Co.  v.  Hathaway,  8  Wend.  483; 

2  Stone  V.  Marye,  14  Nev.  362.  Phillips  v.  Hall,  8  Wend.  610;  O'Don- 

2  Locke  V.  Lewis,  124  Mass.  1.  nell  v.  Kolsej',  10  N.  Y.  412;  State  v. 

*  Morgans  v.  Bridges,  1  Barn.  &,  Jersey  City,  40  N.  J.  L.  483;  Ins.  Co. 
Aid.  650;  Bank  v.  St.  Josepli,  46  v.  Swank,  103  Pa.  St.  17;  Cooper,  in 
3Iich.  526;  Lane  v.  Marsh,  33  La.  An.  re,  93  N.  Y.  507;  Parkway,  in  re,  67 
554;  Hilton  V.  Fonda,  80  X.  Y.  339;  How.  Pr.  341;  Cavanagh  v.  Morrow, 
Williams  v.    Lowndes,   1   Hall,  579;  67  How.  Pr.  241. 

Davenport  v.  Wheeler,   7  Cow.  231 ;         »  Storr  v.    Scott,   6   Car.  &  P.  241. 


Estoppel  in  Pais.  895 

to  be  regarded  as  admitting  the  ownership  of  the  one-fifth.*  So, 
where  a  man  declared  to  be  a  bankrupt  introduced  his  assignee  to 
an  auctioneer,  he  is  concluded  from  denying  liis  bankruptcy."* 

§  769.  Where  a  party,  with  full  knowledge  of  all  the  facts 
creating  the  liability,  acquiesces  in  what  has  been  done,  he  thereby 
ratifies  what  is  done,  and  silence  in  such  a  case,  after  a  reasonable 
time,  will  amount  to  a  ratification.^  The  acts  of  a  party  conclude 
him,  especially  where  others  are  concerned,  notwithstanding  he 
may  make  declarations  to  the  effect  that  he  did  not  so  intend/ 
Where  au  oflicer  received  as  such  for  about  two  years,  his  salary, 
established  at  the  rate  of  $4,000  a  year,  and  without  objection 
collected  fees  and  paid  them  into  the  city  treasury,  the  city 
council,  in  fixing  the  salary  at  $4,000,  intended  to  limit  his  com- 
pensation to  that  amount.  By  receiving  the  salary,  he  estopped 
himself  from  asserting  any  claims  to  fees  of  ofiice,  under  local 
statutes.^  Thus,  by  order  of  the  general  commanding  the 
Department  of  the  Gulf,  during  the  late  war  between  the  States, 
the  defendant  paid  to  an  oificer  designated  in  the  order,  a  certain 
balance  due  to  one  of  its  depositors.  The  depositor  not  having 
repudiated  the  action  of  the  defendant  within  a  reasonable  time 
after  knowledge  of  it  (nine  years  in  this  case)  nmst  be  presumed 
to  have  acquiesced  in  the  settlement  thus  made  of  the  said 
balance,  and  has  no  right  of  action  to  recover  it.°      ' 

§  770.  If  a  duty  is  cast  on  a  man  to  know  the  truth,  and  he 
makes  a  representation  in  such  a  way  as  to  lead  a  reasonable  man 
to  believe  it  to  be  true,  and  is  meant  to  be  acted  on,  he  cannot  be 
heard  to  say,  if  the  representation  proves  to  be  nntrue,  that  he 
believed  it  to  be  true,  and  made  the  misstatement  through  mis- 
take, ignorance  or  forgetfulness.'     As,  for  example,  where  the 

'  Stephens  V.  Baird,  9  Cow.  274.  Swan  v.   North,  &c.  Co.,  2  II.  &  C. 

"^  Clarke  v.  Clarke,  G  Esp.  Gl.  183;  Mocns  v.  Heyworth,  10  M.  &  W. 

*  VVinham  v.  Criitoher,  10  Lea,  610;  147;  Henderson  v.  Lacon,  L.  R.  5  Eq. 

Fort  V.  Coker,  11  Heisk.  589.  262;    Pilsford  v.   Richards,    17  Beav. 

■*  "Wiuham  V.  Crutcher,  10  Lea,  610;  95;  Ayres'  Case,  25  Beav.  522;  Price 

Walker  v.  Walker,  7  Baxt.  2G0.  v.  Macaulay,2  D.  M.  &  G.  345;  Ilut- 

«  Mclnery  v.   Galveston,    58    Tex.  ton  v.  Rositer,  7  D.  M.  &  G.  9;  Raw- 

334.  lius  V.  Wickhara,  2  D.  &  J.  304;  Slim 

«  Bennett  v.  Bank,  34  La.  An.  150.  v.  Croucher.  1.  D.  F.  &  J.  523;  Ilors- 

•"  Burrows  v.  Locke,  10  Ves.  470,  fall  v.  Banking  Co.,  52  L.  J.  Ch.  599; 


896  The  Law  of  Estoppel. 

holder  of  an  equity  of  exemption  went  to  the  pnrcliaser  and 
offered  to  redeem,  but  desired  further  time.  The  purchaser,  by 
mistake,  told  liiiu  tliat  tlie  time  of  redemption  expired  on  a  cer- 
tain day,  which  was,  in  fact,  later  than  the  proper  time,  and 
agreed  that  the  redemption  might  be  made  at  any  time  pi'ior  to 
or  on  that  day.  The  right  of  redemption  exists  up  to,  and 
includes  the  whole  of  the  day  so  designated.' 

§  771.  One  M'ho  makes  false  representations,  which  are  in- 
tended to  inliuencc,  and  do  inliuence,  the  conduct  of  the  other 
party  to  a  contract,  is  responsible  for  the  injury  resulting  there- 
from, no  matter  how  innocently  made  or  honestly  believed  are 
the  representations.'^  Thus,  where  one  mendjcr  of  a  firm  alleged 
that  he  vvas  innocent  of  any  wrong  or  deception  he  personally 
made  to  liie  plaintiff  concerning  the  transaction  for  the  reason 
that  he  had  been  himself  deceived  by  his  partner  in  reference 
thereto,  and  actual!}'  believed  in  the  truth  of  the  statements  when 
lie  made  them,  it  was  hekl  of  no  avail  as  a  defense.  His  position 
•as  a  co-partner  gave  him  the  right  to  know  and  means  of  ascer- 
taining the  actual  facts  in  respect  to  all  matters  connected  with 
•the  partnership,  and  it  imposed  upon  him  the  duty  of  knowing 
the  exact  truth  as  to  any  statements  made  by  him  concerning  its 
transactions  to  any  customer  dealing  with  the  lirm  and  entitled 
to  the  information.  When  he,  therefore,  nuikes  a  representation 
to  a  customer,  in  regard  to  such  customers  business  with  the 
firm  of  which  he  is  a  member,  he  is  bound  t<:»  know  whether  such 
Btatement  is  true  or  not.  Want  of  knowledge,  under  the  circum- 
stances, is  an  act  of  culpable  negligence  on  his  part,  to  which 
the  la\v  fixes  the  same  consequences  as  to  an  intentional  and 
known  misrepresentation. °  Kot  only  is  the  pai'tner  estopped  but 
the  firm  and  its  members  are  equally  estopped,  if  the  fact  is  such 
that  the  representations  of  the  partner  would  be  binding   upon 

Pearson  v.   Douglass,   57   Tcnn.  151;  man  v.  Winter,  64   Ala.  410;  Rankin 

Mayer  V.  Erhardt,  88   111.  452;  Hend-  v.    Hill,    49    Iowa,    270;     Mayer   v. 

ricks  V.  Kelly,  64  Ala.  388.  Erhardt,  88  111.  452. 

*  Pearson   v.    Douglass,    57    Tenn.  ^  Coleman  v.  Pearce,  26  Minn.  123; 

151.  Pence   v.    Arbuckle,    22    Minn.    417, 

2  Loper  V.  Robinson,   54   Tex.  511;  Bank  v.  Hazard,  80  N.  Y.  226;    Bank 

Coleman    v.    Pearse,  26    Minn.    123;  v.  Bank,  50 N.  Y.  576;  Blair  v.  Wait. 

Hendricks  v.  Kelly,  64  Ala.  388;  Good-  69  N.  Y.  113. 


Estoppel  in  Pais.  897 

the  firm  if  true.  Where  matters  embraced  hi  accountg  rendered 
and  referred  to  in  communications  are  within  the  scope  of  the 
ordinary  and  authorized  business  of  a  iirm,  and  the  facts  which 
are  therein  falsely  assumed  to  be  true  are  presumably  within  the 
knowledge  of  the  firm  and  the  members  tlio'eof,  who,  from  the 
circumstances  of  the  case,  possess  peenliar  means  of  knowing  the 
truth  in  respect  thereto,  not  enjoyed  by  any  of  their  customers, 
the  rule  in  such  cases  estops  both  the  firm  and  all  of  its  members 
from  controverting  the  truth  of  the  facts  so  misrepresented  to 
the  prejudice  of  the  party  relying  and  acting  thereon  in  good 
faith.'  So,  where  a  party,  authorized  to  make  a  tax  assessment, 
assesses  his  own  land,  he  is  estopped  from  setting  up  any  defects 
in  the  description  of  his  land  invalidating  a  tax  sale  thereof." 
Thus,  a  firm  are  estopped  from  setting  up  their  ownership  to 
property,  where  one  of  the  firm  makes  representations  that  the 
property  was  bought  on  account  of  a  third  party,  and  that  the 
interest  of  the  firm  in  the  property  was  limited  by  the  amount 
advanced  by  them  in  the  purchase  thereof,  upon  the  faith  of  these 
representations,  the  defendants  purchase  the  same  of  that  third 
party.'' 

§  772.  It  is  not  necessary  in  order  to  the  existence  of  an 
equitable  estoppel  that  there  should  exist  a  design  to  deceive  or 
defraud.  The  person  against  whom  the  estoppel  is  asserted 
must,  by  his  silence  or  his  representations,  have  created  a  belief 
of  the  existence  of  a  state  of  facts  which  it  would  be  unconscion- 
able to  deny,  but  it  is  not  essential  that  he  should  have  been 
guilty  of  positive  fraud  in  his  previous  conduct.  Nor  is  it  essen- 
tial that  there  should  in  all  cases  be  an  intention  to  deceive,  or 
even  a  knowledge  that  the  representation  was  false.'*     It  would 

•  Griswold  v.  Haven,  25  N.  Y.  595;  Thomas,  6  Mich.  76;  Mitchell  v.  Reed, 
Colem;m  v.  Pearce,  26  Minn.  123.  9  Cal.  204;  jMcDermolt  v.  Barnum,  19 

a  JefErics  V.  Clark,  23  Kas.  448.  Mo.  204;  Buchanau   v.   More,  13   S. 

3  Bemis  v.  Becker,  1  Kas.  226.  &  li.  304;  Strong  v.  Ellsworth,  26  Vt. 

*  Gregg  V.  Wells,  10  A.  «fc  E.  90;  366;  Wells  v.  Pierce,  27  N.  H.  503; 
Preston  v.  i\Iann,  25  Conn.  15;  New-  Davis  v.  Handy,  37  N.  H.  65  ; 
man  V.  Hood,' 30  Mo.  207;  Carpenter  Drew.  v.  Kimball,  43  N.  H.  285; 
V.  Stillwell,  12  Barb.  135;  Eldred  v.  Bank  v.  Bank,  50  N.  Y.  575;  Blair  v. 
Hazlett,  33  Pa.  St.  316;  Adams  Co.  v.  Wait,  69  N.  Y.  113;  Stevens  v.  Den- 
Brown,    16    Ohib  St.    78;    Quirk    v.  uett,  51  N.  II.  324;  Beebe  v.  Wilkin- 


son, 30  Miuu.  548. 


Vol.  I.— 57 


S9S  The  Law  of  Estoppel. 

be  trifling  with  a  doctrine  depending  on  equity  and  good  con- 
science, to  hold  otiierwise.  So,  if  a  representation  was  intended 
to  deceive  one  man,  and  it  in  fact  deceived  and  defrauded 
another.  Tlien,  again,  if  the  representation  was  intended  to 
liave  one  operation,  and,  as  it  turned  out,  deceived  and  defrauded 
by  another  method  not  contemplated  by  the  party  at  the  time, 
but  still  the  natural  consequence  of  the  representation,  it  would 
be  quibbling  with  a  doctrine  depending  for  its  application  on  tlie 
moi'ality  of  the  act,  to  liold  that  the  party  would  not  be  answer- 
able for  the  consequences  of  liis  false  and  fraudulent  representa- 
tion, as  mucli  as  if  it  luid  taken  efEect  on  the  party  and  in  tlie 
manner  intended.  Jn  a  case  depending  on  a  question  of  "  legal 
ethics,"  it  would  bring  down  the  morality  of  the  law  to  a  very 
low  standard  to  hold  that  a  party  was  not  liable  for  the  wrong 
caused  by  his  fraud  to  one  man,  because  the  fraud  was  contrived 
against  another  man.  The  general  current  of  authority  on  the 
subject  tends  to  a  liberal  application  of  the  doctrine  for  the  sup- 
pression of  fraud  and  dishonesty,  and  the  promotion  of  justice 
and  fair  dealing.  'No  disposition  is  now  shown  by  courts  to  treat 
this  equitable  estoppel  as  odious,  and  embarrass  its  application  by 
attempts  to  confine  it  within  the  limits  of  a  narrow  technical 
definition.  The  authorities  lead  plainly  to  the  conclusion,  that 
where  a  man  makes  a  statenaent  disclaiming  his  title  to  property, 
in  a  manner  and  under  circumstances  such  as  he  must  under- 
stand those  who  lieard  the  statement  would  believe  to  be  true, 
and,  if  they  had  an  interest  in  the  subject,  would  act  on  as  true, 
and  one,  using  his  own  means  of  knowledge  with  due  diligence 
acts  on  the  statement  as  true,  the  party  who  makes  the  statement 
cannot  show  that  liis  representation  was  false  to  the  injury  of 
the  party  who  believed  it  to  be  true,  and  acted  on  it  as  such  ; 
tlmt  he  will  be  liable  for  the  natural  consequences  of  his  repi'e- 
sentation,  and  cannot  be  heard  to  say  that  the  party  actually 
injured  was  not  the  one  he  meant  to  deceive,  or  that  his  fraud 
did  not  take  effect  in  the  manner  he  intended.' 

§  773.  The  doctrine  has  not  in  equity  been    limited  to  cases 

'  Horn  V.  Cole,  51  N.  H.  287;  Smith  Louglieiy,  13  Phila.  416;  Coleman  v. 

V.  Kay,    7   H.    L.  C.    750;    Bcattie  v.  Pearce,    2G   Minn.    123;   Payment  v. 

Ebury.  L.  R.  7  H.  L.  102;  Cherry  v.  Church,  38  Mich.  776. 
Bank,  L.  R.  3   P.  C.  24;  Mecouch  v. 


Estoppel  in  Pais.  899 

where  there  was  an  actual  intention  to  deceive.  The  cases  are 
numerous  where  the  party,  who  was  estopped  by  his  decLarations 
or  his  conduct  to  set  up  his  legal  title,  was  ignorant  of  it  at  the 
time,  and,  of  course,  could  have  had  no  actual  intention  to  de- 
ceive by  concealing  his  title.  Yet,  if  the  circumstances  were 
such  that  he  ought  to  have  informed  himself,  it  has  been  held  to 
be  contrary  to  equity  and  good  conscience  to  set  up  his  title, 
though  he  was  in  fact  ignorant  of  it  wlien  he  made  the  represen- 
tations. So  if  the  party  knew  the  facts,  but  mistook  the  law. 
Nor  is  it  necessary  in  equity  that  the  intention  should  be  to 
deceive  any  particular  individual  or  individuals.  If  the  repre- 
sentations are  such,  and  made  in  such  circumstances,  that  all 
persons  interested  in  the  subject  have  the  right  to  rely  on  them 
as  true,  their  truth  cannot  be  denied  by  the  party  that  has  made 
them  against  any  one  who  has  trusted  in  them  and  acted  on 
them.  In  England,  the  case  of  Pickard  v.  Sears,  does  not 
appear  to  have  been  understood  as  intended  to  lay  down  a  com- 
plete definition  of  the  equitable  doctrine  excluding  all  cases  that 
could  not  be  brought  within  the  terms  of  the  remarks  made  by 
Lord  Denman.  It  was  held  that  the  term  wiUfully,  used  in 
Pickard  v.  Sears,  was  not  to  be  understood  in  the  sense  of  ynali- 
ciously  ^  and  that  whatever  a  man's  real  meaning  may  be,  if  he 
so  conducts  himself  that  a  reasonable  man  would  take  the  repre- 
sentation to  be  true,  and  believe  it  was  meant  he  should  act  on  it, 
and  he  did  act  on  it  as  true,  the  party  making  the  representation 
would  be  equally  precluded  from  contesting  its  truth.  This  is 
wholly  inconsistent  with  the  notion  that  an  intention  to  deceive 
is  an  essential  ingredient  of  the  representation,  which  precludes 
the  party  making  it  from  showing  that  it  was  false.'  In  the  later 
case  of  Gregg  v.  Wells,''  Lord  Denman  says,  "  Pickard  v.  Sears 
was  in  my  mind  at  the  time  of  the  trial,  and  the  principal  of  that 
case  may  be  stated  even  more  broadly  than  it  is  there  laid  down. 
A  party  who  negligently  or  culpably  stands  by  and  allows  another 
to  contract  on  the  faith  and  understanding  of  a  fact  which  he  can 
contradict,  cannot  afterwards  dispute  that  fact  in  the  action 
against  the  person  whom  he  has  himself  assisted  in  deceiving." 
Which  indicates  that  Lord  Denman  did  not  himself  understand 
that  the  rule  stated  in  Pickard  v.  Sears  was  to  be  regarded  as  a 

>  Freeman  v.  Cooke,  2  Ex.  654.  ^  Gregg  v.  Wells,  10  A.  &  E.  90. 


900  The  Law  of  Estoppel. 

definition  and  limitation  of  the  equitable  doctrine,  for  lie  says 
tlic  principle  of  the  case  mi^ht  be  stated  more  broadly  than  it  is 
laid  down  there,  and  may  include  the  case  of  a  culpable  negli- 
gence. 

§  774.  Neither  equity  nor  the  law  requires  that  one  having 
title  to  property  shall  seek  out  a  party  who  is  about  to  purchase 
it  from  a  supposed  owner,  and  inform  him  of  his  title.  All  that 
it  requires  is  that  he  shall  do  no  act,  nor  be  guilty  of  any  mis- 
leading silence,  or  apparent  acquiescence,  by  which  another  may 
be  entrapped  into  a  transaction  which  he  would  not  have  entered 
upon  if  he  had  been  advised  of  the  objection.  On  the  principle 
that  he  who  holds  his  peace  when  he  ought  to  have  spoken,  shall 
not  be  heard  when  he  should  be  silent,  he  is  deemed  in  equity  a 
party  to  the  fraud.'  AVhen  it  is  'said  that  fi-aud  is  a  necessary 
element  to  an  equitable  estoppel,  silence  is  fraud.  Negligence 
becomes  constructive  fraud,  although,  strictly  speaking,  the 
actual  intention  to  mislead  or  deceive  may  be  wanting,  and  the 
party  may  be  innocent,  if  innocence  and  negligence  may  be 
deemed  compatable.  This  doctrine  is  illustrated  in  many  cases 
in  subsequent  chapters.  A  party  has  no  riglit,  in  his  dealings 
with  another,  to  state  a  fact  to  be  true,  and  which  may  influence 
the  conduct  of  the  other  party.  If  such  a  fact  be  stated  to  obtain 
a  benefit,  at  the  expense  of  the  other  part}',  and  to  his  prejudice, 
and  it  appears  there  was  no  reasonable  or  probable  ground  for  a 
belief  in  the  existence  of  such  fact,  the  inference  is  that  there 
was  no  belief,  and  the  statement  under  such  circumstances  has 
the  effect  of  and  may  be  properly  treated  as  a  fraud.* 

§  775.  It  is  not  necessary  that  the  party  making  the  repre- 
sentations should  know  that  they  were  false,  no  fraud  need  liave 
been  intended  at  the  time,  but  if  the  party  unwittingly  misled 
another,  you  must  add  that  he  has  misled  him  under  such  cir- 
cumstances that  he  had  reasonable  ground  for  supposing  that  the 
person  whom  he  was  misleading  would  act  upon  wliat  he  was 
saying,  All  that  is  essential  is  that  there  should  be  such  conduct 
on  the  part  of    the   person  against  whom  the  estoppel  is  alleged 

'  Bank  v.  Lee,  13  Pet.  107;  Mont-  «  Nugent  v.  R  H.  Co.,  2  Disney, 
gomcry  V.  Gordon,  51  Ala.  377;  Doi"  302;  Eaton  v.  Winne,  20  Mich.  156. 
laque  v.  Cress,  71  III.  380. 


Estoppel  in  Pais.  901 

as  would  make  it  fraud  for  him  to  gainsay  what  lie  had  expressly 
admitted  by  his  words  or  tacitlj-  confessed  by  his  silence,  but 
there  need  not  be  in  the  precedent  acts  actual  fraud  or  evil 
design.  All  that  is  meant  in  the  expression  that  an  estoppel 
must  possess  an  element  of  fraud,  is  that  the  case  must  be  one 
in  which  the  circumstances  and  conduct  would  render  it  a  fraud 
for  the  party  to  deny  what  he  had  previously  induced  or  suf- 
ferred  another  to  believe  and  take  action  upon  ;  the  door  is  shut 
against  asserting  a  right  then  that  would  result  in  doing  an  injury 
by  the  party  asserting  it  to  some  otiier  person,  or  when  in  good 
conscience  and  honest  dealing  he  ought  not  to  be  permitted  to 
gainsay  his  previous  conduct.  This  is  sufficient  to  work  an 
estoppel  and  bring  in  the  element  of  moral  wrong,  and  there 
need  be  no  precedent,  corrupt  motive  or  evil  design.  If  the 
effort  to  deny  ought  not  in  good  conscience  to  be  successful, 
then  emerges  the  moral  wrong  which  the  courts  denominate 
fraud.  It  is  essential  to  the  validity  of  an  equitable  estoppel 
that  the  person  who  affirms  it  to  exist  should  show  that  he  had 
acted  upon  tlie  conduct  of  the  other  party,  and  on  the  faith  of 
that  conduct,  and  influenced  by  it,  had  parted  with  some  thing 
or  some  right  of  value.  It  is  quite  clear  that  one  who  has  not 
paated  with  value  or  who  has  not  placed  himself  in  a  position 
where  he  would  suffer  loss,  can  have  no  just  reason  to  conclude 
his  adversary  from  averring  the  truth. 

§  776.  If  a  person,  having  a  right,  and  seeing  another  per- 
son about  to  commit,  or  in  the  course  of  committing,  an  act 
infringing  upon  that  right,  stands  by  in  such  a  manner  as  really 
to  induce  the  person  committing  the  act,  and  who  might  other- 
wise have  abstained  from  it,  to  believe  that  he  assents  to  its  being 
committed,  he  cannot  afterwards  be  heard  to  complain  of  the 
act.  This  is  the  proper  sense  of  the  term  "■  acquiescence,"  and 
in  that  sense  it  may  be  defined  as  "  quiescence^''  under  sitch  cir- 
cumstances as  that  assent  may  he  reasonably  inferi'ed  from  it, 
and  is  no  more  than  an  instance  of  the  laiv  of  estoppel  hy  words 
or  conduct.^ 

'Ross  V.    Thompson.   78  Ind.    90;  Boardman  v.  R.  R.  Co.,  84  K  Y.  182; 

Masterson  V.  R.  R.  Co.,72Mo.  342;  R.  Angell    v.    Johnson,  51    Iowa,    625; 

R.  Co.   V.   Hamilton,  59  Ga.  171;  De  Cheatham  v.  Wilber,  1  Dak.   T.  335; 

Bussche  v.  Alt,  L.  R.  8  Chan.  D.  314;  Lippmins  v.  McCrawie,   30  La.    An. 


902  The  Law  of  Estoppel. 

§  77T.  Whatever  a  man's  real  intention  may  be,  if  lie  mani- 
fests any  intention  to  another  party,  so  as  to  induce  the  latter  to 
act  upon  it,  in  making  a  contract,  lie  will  be  estopped  from 
denying  that  the  intention,  as  manifested,  was  his  real  intention. 
A  party  to  an  alleged  contract  cannot  escape  the  natural  and 
reasonable  interpretation  of  the  language  used,  or  the  acts  done 
by  him,  by  showing  that  the  language  was  used  or  the  acts  done 
■with  a  different  and  undisclosed  intent.'  The  law  judges  of  an 
agreement  between  two  persons  exclusively  from  the  expression 
of  their  intention  which  are  communicated  between  them  ;  con- 
sequently an  agreement  cannot  be  affected  by  the  mistake  of 
either  party  in  expressing  his  intention  or  his  motive,  of  which 
the  other  party  has  no  knowledge,  and  the  party  who  has  entered 
into  the  agreement  under  such  mistake  is  bound  by  the  agree- 
ment actually  made,  and  cannot  assert  his  mistake  in  avoidance 
of  the  agreement.'  A  person  is  concluded  by  the  words  he 
deliberately  adopts  and  uses  in  an  instrument,  whether  he  at  the 
time  fully  understood  their  legal  signification  or  not.  The 
rights  which  third  parties  may  acquire  cannot  be  affected  by  the 
individual  views  or  understanding  of  the  proprietor  in  such  a 
case.' 

§  778.  An  estoppel  from  the  representations  of  a  party  can 
seldom  arise,  except  where  the  representation  relates  to  a  matter 
of  fact,  to  a  present   or  past  state  of   things.     If  the  representa- 

1251 ;  Kirk  v.  Hamilton,  102  U.  S.  68;  Hayman,  in  re,  8  Ch.  D.  11;  Roland,  in 

Bank  v.    Lee,    13  Pet.  107;  Slate  v.  re,    L.    R.    1   Cb.    App.    421;  Cree  v. 

Jersey  City,  40  N.  J.  L.  483.  Somervail,   L.    R.    4  App.    Cas.  648 

*  Ilawe.s  V.  Marchant,  1  Curt.  C.  C.  Oakes  v.  Turquaud,  L.  R.  2  H.  L.  325 

136;  Audenried  v.  Bettely,    5   Allen,  Muir  v.  Bank,  L.  R.  4  App.  Cas.  337 

,382;  Cornish  v.  Abingdon,  4  H.  &  N.  Pickering  v.  Busk,  15  East,  38;    Hoi 

549;  Turner  v.  Coffin,  12   Allen,  401;  lins  v.   Fowler,   L.    R.    7   Q.  B.  GIG 

Zuchtman   v.  Roberts,  109   Mass.  53;  Stevens    v.    Elwall,   4  M.    &;    S.  259 

Slim  V.  Ciouch"r,  1  De   G.    F.   &  J.  Hardmau   v.    Booth,  1    II.  &   C.  803 

518;  Howard  v.  Hudson,  2  Ell.  &  Bl.  Rumball  v.  Bank,  L.  R.  2Q.B.D.  194 

1;  Van  Toll  v.  R'y  Co.,  12  C.  B.  X.  S.  Goodwin  v.  Roberts,  L.  R.  10  Exchq. 

75;   Willis   v.    Willis,    2   Allen,    191;  337. 

Alexander  v.    Worman,   6  II.  &  N.  -  Hatsou   v    Brown,    9  C.  B.  N.  S. 

100;  Hatsonv.  Brown,   9  C.  B.  K  S.  442;  Powell  v.  Smith,   L.    R.  14  Eq 

442;  Powell  v.    Smith,  L.  R.  14  Eq.  85;  White  v.  Smith,  37  Mich.  291. 

85;  Gurney  v.  Evans,  3  H.  <fc  N.  122;  ^  white  v.  Smith,  37  Mich.  291. 
Mollwo  V.  Court,  L.  R.   4.  P.  C.  419; 


EsTOPPp]L  IN  Pais.  903 

tion  relate  to  something  to  be  afterwards  brought  into  existence, 
it  wi-11  amount  only  to  a  declaration  of  intention  or  of  opinion, 
liable  to  modification  or  abandonment  npon  a  change  of  circum- 
stances of  which  neither  part}'  can  have  any  certain  knowledge. 
The  only  case  in  which  a  representation  as  to  the  future  can  be 
held  to  operate  as  an  estoppel  is  where  it  relates  to  an  intended 
abandonment  of  an  existing  right,  and  is  made  to  influence 
others,  and  by  which  they  have  been  induced  to  act.  An  estop- 
pel cannot  arise  from  a  promise  as  to  future  action  with  respect 
to  a  right  to  be  acquired  upon  an  agreement  not  yet  made. 

The  doctrine  of  estoppel  is  applied  with  respect  to  represen- 
tations of  a  party,  to  prevent  their  operating  as  a  frand  npon  one 
who  has  been  led  to  rely  npon  them.  They  would  have  that 
effect,  if  a  party  who,  by  liis  statements  as  to  matters  of  fact,  or 
as  to  his  intended  abandonment  of  existing  rights,  had  designedly 
induced  another  to  change  his  conduct  or  alter  his  condition  in 
reliance  npon  them,  could  be  permitted  to  deny  the  truth  of  his 
statements,  or  enforce  his  rights  against  his  declared  intention 
of  abandonment.'  As  a  general  rule,  the  estoppel  created  by  a 
false  representation  acted  upon  is  commensurate  with  the  thing 
represented,  and  operates  to  put  the  party  entitled  to  the  benefit 
of  the  estoppel  in  the  same  position  as  if  the  thing  represented 
was  true.^ 

§  Y79.  Kepresentations  made  by  one  party  for  the  purpose  of 
influencing  the  conduct  of  the  other  party,  and  acted  on  by  him 
to  his  prejudice,  the  person  making  the  representation  will  not  be 
allowed  either  in  equit}'  or  at  law  afterwards  to  deny  the  alleged 
fact ;  it  shall  be  as  represented  to   be.'     Thus   where   a   party 

1  White  V.    Ashton,  51  N.  Y.  280;  Kirkpatrick  v.   Brown,   59   Ga.  450; 

White  V.  Walker,  31  111.  422;  Faxton  Mayer  v.  Erbardt  £8  111.  452;  Heud- 

V.  Faxton,  28  Mich.  159;  Maddisou  v.  ricks  v.  Kelley.  64   Ga.  388;   Wylio's 

Aldorsoii,  8  App.  Cas.  473;  .Jordan  v.  Appeal,  90  Pa.  St.  210;  Rabun  v.  Ra- 

Moncy,    5    H.    L.    C.    185;  Proal  v.  bun,  61   Ga.  647;  Green's   Appeal,  97 

Soady,  2  Giff.  1;  Pigott  v.  Stratfon,  1  Pa.  St.  342;  Sch»}nck   v.    O'Neill,    23 

D.    F.    &  J.   33;     Insurance    Co.    v.  IIuii,  209. 

Mowiy,  96  U.  S.  544;  Per  Field,  .Jus-  ^  Montefiori  v.  Montefiori,    1   Wm. 

tice.  Shields  v.  Smith,  37  Ark.  47.  Bla.  364;  Aiusliev.  Medlycott,  9  Ves. 

••^Grisuler  v.    Powers,  81  N.  Y.  57;  21;  Hammersley  v.  Dubiel,  12   CI.  & 

S.  C,  37  Am.  R.  475;  Rankin  v.  Hill,  F.  62;  Neville  v.    Wilkinson,  1   Bro. 

49  Iowa,  270;  Bemisv.  Becker,  1  Kas.  C.   C.    543;  Gale  v.    Lindo,  1   Vern, 

226;  Welsch   v.    Bank,    94  111.  191;  475;  Scott  v.  Scott,  1  Cox,  366;  Pick- 


904 


The  Law  of  Estoppel. 


represents  to  a  purchaser  that  the  title  is  good,  or  is  present  at  a 
sale  when  his  agent  declares  the  title  to  be  free  from  incum- 
brances, &c.,  he  cannot  afterwards  set-  up  an  incumbrance  as 
against  the  title.'  "So  where  a  party  was  induced  to  purchase 
real  estate  by  the  representation  of  the  officer  selling,  that  there 
were  no  liens  on  the  same,  when  at  the  same  time  the  officer  held 
or  knew  of  an  execution  binding  the  property  ;  and  he  purchased 
the  same  when  it  was  afterwards  sold  on  execution,  such  officer 
was  estopped  from  setting  up  the  title  obtained  under  the  execu- 
tion sale,  to  the  prejudice  of  the  former  purchaser,  and  was  com- 
pelled to  convey  to  him  the  title  so  obtained/  So  where  the 
owner  of  land,  by  his  positive  acts  misleads  his  neighbor  as  to 
the  extent  of  his  claim,  in  consequence  whereof  such  neighbor 
cuts  and  converts  to  his  own  use  timber  growing  beyond  his  line, 
the  owner  of  the  land  whereon  the  timber  was  cut,  cannot  take 
advantage  of  the  provisions  of  the  act  to  prevent  timber  cutting 
and  this,  though  he  was  at  the  time  of  the  trespass  ignorant  as  to 
the  true  location  of  his  land/     Where  the  plaintiflE  in  an  action 


aid  V.  Sears,  6  A.  &  E.  469;  Gregg  v. 
Wells,  10  A.  &  E.  90;  Freeman  v, 
Cooke,  2  Exchq.  654;  Harding  v. 
Randall,  3  Me.  332;  Smith  v.  Rich- 
ards, 13  Pet.  38;  TrumbviU  v.  Gads- 
den, 2  S.  C.  E.  Q.  14;  McFarran  v. 
Taylor,  3  Crancli,  28"i;  Taylor  v.  Ash- 
ton,  11  M.  &  W.  400;  Foster  v. 
Charles.  6  Bing.  396;  Howard  v.  Hud- 
son. 2  El!.  &  B.  1 ;,  Foster  v.  Ins.  Co., 
3E11.  &B.  48;  Bold  v.  Hutchinson, 
20  Beav.  250;  Andrews  v.  Keith,  34 
Ala.  722;  Money  v.  Jordan,  2  De  G. 
M.  &  G.  332;  Wilcox  v.  University. 
32  Iowa,  367;  Guthrie  v.  Quinn,  43 
Ala.  156;  Markham  v.  Ilunuicult,  43 
Ga.  1;  Eaton  v.  Winnie,  20  Mich. 
156;  Grace  v.  McKissock,  49  Ala. 
163;  Harris  v.  Powers,  57  Ala.  139; 
Hefner  v.  Vandolah,  57  111.  520;  Raley 
V.  Williams,  73  Mo.  310;  Powers  v. 
Thorp,  92  Pa.  St.  346;  Winchcll  v. 
Edwards,  57  111.  41 ;  Griseler  v.  Pow- 
ers, 81  N.  Y.  57;  S.  C,  37  Am.  R. 
475;  VAuneter  v.  Grossman,  42  Mich, 


465;  Haynes  v.  East  India  Co.,  11 
Moo.  P.  C.  C.  39;  Tyerman  v.  Smith, 
25  L.  J.  Q.  B.  359;  Andrews  v.  Elliott, 
L.  J.  Q.  B.  1;  Swan  v.  North,  &c. 
Co.,  7  C.  B.  N.  S.  400;  Nicholls  v. 
Downs,  1  M.  &  R.  13;  R.  v.  Hol- 
land, 8  A.  &  E.  429;  Doe  v.  Hodgson, 

12  A.  &  E.  35;  Trickartv.  Tomlisson, 

13  C.  B.  N.  S.  663;  Van  Hasselt  v. 
Sack,  13  M.  P.  C.  C.  185;  West  Fries- 
land.  The,  1  Sw.  Admr.  456;  Thomas 
V.  Brown,  L.  R.  1  Q.  B.  D.  714;  R'y 
Co.  V.  Daniel,  2  Q.  B.  2S1;  R'y  Co., 
in  re,  3  Q.  B.  584;  Hart  v.  Froutino, 
L.  R.  5  Ex.  Ill;  Gould  v.  Board,  50 
L.  J.  M.  C.  44;  Leeper  v.  Ilersman, 
58  111.  2  J  8. 

'  Markham  v.  O'Conuers,  52  Ga. 
183. 

'Gill  V.  Denton,  71  N.  C.  341; 
Youugblood  V.  Cunningham,  38  Ark. 
572. 

^  Kramer  V.  Goodlaader,  98  Pa.  St. 
353. 


Estoppel  in  Pais.  905 

of  trover  brought  against  the  owner  of  lands  for  the  conversion 
of  lumber  used  in  building  a  house  thereon,  claimed  under  a  sale 
bj  the  builder,  and  before  purchasing  he  inquired  of  the  defend- 
ant as  to  the  builder's  right  to  sell,  and  was  informed  by  him  that 
the  builder  had  authority  to  sell  the  lumber,  and  thereupon  he 
purchased  it,  this  amounts  to  an  estoppel,  and,  unexplained, 
vested  title  in  the  plaintiff,  and  will  support  the  action.*  Where 
one  has  made  representations  which  justify  an  attachment,  and  a 
creditor  has  acted  on  tliem,  the  representations,  for  the  purpose 
of  dissolving  the  attachment,  are  to  be  taken  as  true/  An  owner 
of  land  who  had  induced  one  to  buy  it  from  a  purchaser  at  execu- 
tion sale,  is  estopped  from  asserting  his  title  in  a  court  of  equity.^ 
Where  a  person,  desiring  to  purchase  land,  and  being  informed 
that  there  is  an  nnsatisfied  deed  of  trust  on  it,  executed  by  the 
owner,  asks  information  from  the  trustee  and  sole  beneficiary  of 
the  deed,  and  is  assured  by  him  that  the  grantor  has  the  right  to 
sell  and  make  title,  and  that  the  unpaid  balance  of  the  secured 
debt  can  be  realized  from  the  other  property  conveyed  by  the 
deed,  such  declarations,  though  made  innocently  and  inadvert- 
ently, operate  as  an  estoppel  against  the  parties  making  them,  or 
any  one  claiming  subsequently  under  them  with  notice,  in  favor 
of  the  person  to  whom  they  were  made,  if,  on  the  faith  of  them, 
he  concluded  the  contract  of  purchase  from  the  grantor/  Courts 
Avill  not  assist  parties  in  perpretating  frauds,  and  therefore  no 
one  will  be  allowed  to  recover  property  sold  at  his  instance  and 
for  his  benefit  or  that  of  his  estate/ 

§  T80.  Fraud  means  an  intention  to  deceive.  Where  one  has 
made  a  false  representation,  knowing  it  to  be  false,  the  law  infers 
that  he  did  so  with  an  intention  to  deceive.  If  a  person  tells  a 
falsehood,  the  natural  and  obvious  consequence  of  which,  if  acted 
on,  is  injury  to  another,  that  is  fraud  in   law.*     These  equitable 

1  Powers    V.    Han-is,  68   Ala.  409.  *  Hendricks  v.   Kelly,  64  Ala.  388. 

2  Newmanv.  Kraim,  34La.An.  910;  ^Hyaa  v.  Maxey,  43  Tex.  192; 
Livermore  v.  Rhodes,  27  How.  Pr.  Cravens  v.  Booth,  8  Tex.  243;  Grande 
506;  Cocke   v.    Kuykendall,  41  Miss.  v.  Chaves,  15  Tex.  550. 

65;  Morgan  v.  Nunes,  54  Miss.  308;  «  Lord   v.    Goddard,  13   How.  198; 

Eoach    V.    Brannon,    57    Miss.    490.  Hammott  v.   Emerson,    27  Me.   308; 

^Wimmer    v.    Ficklin,    14    Bush,  Foster  v.  Charles,  7  Bing.  105;  Polhill 

193.  v.  Walter,  3  B.  &  A.  114;  Sleeper  v. 


906  The  Law  of  Estoppel. 

estoppels  operate  only  in  favor  of  a  person  who  has  been  misled 
to  his  injury.'  But  it  is  not  necessary  that  a  party  should  act 
affirmatively  upon  a  declaration  to  create  an  estoppel.  If  he  had 
acted  not  in  reliance  upon  it,  but  has  means  in  his  power  to 
retrieve  his  position,  and,  relying  upon  the  statement  and  in  con- 
sequence of  it  he  refrains  from  "using  these  means,  the  estoppel 
will  be  enforced  for  his  benefit."  Thus,  one  Avho  represented  to 
defendants,  who  were  endeavoring  to  compromise  their  indebted- 
ness, that  E.  was  the  owner  of  a  certain  judgment  against  them, 
in  reliance  on  which  representation  they  compromised  it  with  E., 
paid  a  part  and  took  a  discharge,  was  held  estopped  to  assert  his 
own  title  to  the  judgment,  and  bound  by  the  discharge,  notwith- 
standing payment  in  full  was  not  made.' 

§  781.  Several  things  are  essential  to  be  made  out  in  order  to 
enforce  the  operation  of  this  doctrine :  1st,  That  the  act  or  dec- 
laration of  the  person  must  be  willful ;  that  is,  Avith  knowledge 
of  the  facts  upon  which  any  right  he  may  have  must  depend,  or 
with  intention  to  deceive  the  other  party.  2nd,  He  must,  at 
least,  it  w^ould  seem,  be  aware  that  he  is  giving  countenance  to 
the  alteration  of  the  conduct  of  the  other,  whereby  he  will  be 
injured  if  the  representation  is  untrue;  and,  3d,  The  other  must 
appear  to  have  changed  his  position  by  reason  of  such  induce- 
ment."    There   must  be  a  deception   and   change  of  conduct,  to 

Ins.  Co.,  56  N.  H.  401;  Leach  v.  Ins.  Olmstead,  3  Hun,  744;  S.  C,  6  T.  & 

Co.,     58    N.     II.    245;     Chaplin    v.  C.  172. 

Ins.  Co.  ^  Blair  v.  Wait,  69  N.  Y.  113. 

1  Kctchum  V.  Duncan,  96  U.  S.  659;  *  Copeland  v.  Copeland.  28  Me.  525; 
Coleman  v.  Pearce,  26  Minn.  123;  Newton  v.  Liddiaid,  12  Q.  B.  925; 
Mecouch  V.  Loughery,  12  Phila.  416;  Calif  v.  Hilhouso,  3  Minn.  311;  Taylor 
Stinger  v.  Ins.  Co.,  82  Ind.  100;  v.  Zepp,  14  Mo.  482;  Martin  v.  Aiigol. 
Wythe  V.  Salem,  4  Sawyer,  88;  7  Barb.  407;  Otis  v.  Sill,  8  Barb.  102; 
Morgan  v.  R  R.  Co..  96  U.  S.  716;  Carpenter  v.  Stihvell,  12  Barb.  128; 
Scoby  V.  Thweatt,  28  Te.x.  730;  Allura  Commonwealth  v.  Moltz,  10  Pa.  St. 
V.  Perry.  68  Me.  232;  Hardy  v.  Bank,  527;  Eldred  v.  Hazlelt,  33  Pa.  St. 
51  Md.  562.  307;    Shaw    v.    Beebe,    35    Vt.    209; 

2  Bank  v.  Bank,  50  N.  Y.  575;  Gay-  Wooley  v.  Edson,  35  Vt.  214;  Powell 
lord  V.  Vauloan,  15  Wend.  308;  v.  Rogers,  105  111.  318;  Stringer  v. 
Knights  V.  WilTen,  L.  R.  5  Q.  B.  660;  Ins.  Co.,  82  Ind.  100:  Wrights  Appeal. 
Bank  v.  Keene,  53  Me.  103;  Brown  v.  99  Pa.  St.-425;  Heane  v.  Rogers,  9  B. 
Sprague,  5  Denio,  545;  Voorhees  v.  &  C.  577;  Blum  v.  Merchant,  58  Tex. 

400;  Clark  v.  Coolidge,  8  Kas.  139. 


Estoppel  in  Pais  907 

estop  a  party  from  showing  tlie  truth.'  As,  for  example,  where 
the  owners  of  land  execute  a  written  instrument  with  the  design 
and  intent  that  it  shall  be  filled  up  so  as  to  be  a  valid  conveyance 
of  such  land,  and  it  is  filled  up  by  their  authority,  by  a  person 
W'ho  afterwards  delivers  it  to  the  grantee  and  receives  the  pur- 
chase money  (grantee  being  ignorant  of  any  irregularity  in  the 
execution  of  said  deed),  and  the  grantors,  after  the  delivery  of  the 
deed  and  payment  of  the  purchase  money,  permit  the  grantee  to 
enter  into  possession  and  make  valuable  improvements,  become 
the  tenants  of  such  grantee,  and  pay  him  rent  for  such  premises 
for  a  term  of  years,  and  during  all  the  time  treat  such  convey- 
ance as  valid,  and  the  grantee  as  the  owner,  they  will  be  estopped 
from  claiming  that  the  deed  should  be  set  aside  for  irregularity 
in  its  execution,"  So,  where  plaintiff,  a  depositor  in  a  national 
bank,  requested  a  certificate  of  deposit  drawing  interest,  for  a 
portion  of  his  deposit,  the  teller  gave  him  a  certificate  purporting 
to  be  issued  by  B.  &  Co.,  a  private  banking  firm,  and  informed 
him,  in  the  presence  of  the  cashier  of  the  bank,  that  this  was  the 
bank's  certificate,  upon  which  assurance  the  plaintiff  accepted  it. 
The  members  of  the  firm  were  the  managing  officers  of  the  bank, 
but  had  a  separate  place  of  business  in  the  same  town.  Held, 
that  the  bank  was  liable  to  the  plaintiff  for  the  amount  of  the 
deposit.'  And  after  a  wife  had  brought  suit  for  divorce,  the 
parties  were  reconciled,  and  entered  into  a  sealed  agreement  by 
which,  among  other  things,  the  husband  conveyed  to  the  v/ife 
certain  chattels.  Afterward,  the  wife  brought  a  new  suit  for 
divorce,  and  executed  to  her  attorney  a  mortgage  of  said  chattels 
to  secure  his  claim  for  services.  Held,  in  an  action  by  the  hus- 
band, after  again  becoming  reconciled,  to  recover  possession  of 
the  chattels,  that  he  was  estopped,  as  against  the  defendant,  to 


'  Davidson   v.  Young,  38  111.  145;  St.  498;  Darrah  v.  Bryant,  56  Pa.  St. 

Wilson  V.  Castro,  31  Cal.  420;  Andrews  69;  Williams  v.  Chandler,  25  Tex.  4; 

V.  Lyon,  11    Allen,  344;  Hazelton  v.  Hicks  v.  Cram,  17  Vt.  449;  Chandler 

Batcbelder,  44  N.  H.  40;  Lawrence  v.  v.  White,   84   111.    435;    Davidson   v. 

Brown,  5  N.  Y.  394;  Jewett  v.  Miller,  Young,  38  111.  152;  Flower  v.  Elwood, 

10   N.  Y.  402;   Ryers   v.    Farwell,    9  66  111.  447. 

Barb.    615;    Hawl^y   v.  Griswold,  42  "  Knaggs  v.  Mastin,  9  Kas.  532. 

Barb.  18;  Garlinghouse  v.  Whitwell,  ^  Stcekel   v.  Bank,  93   Pa.  St.   376; 

51  Barb.  208;  Brubaker  v.  Okeson,  36  Zegler  v.  Bank,  98  Pa.  St.  393;  S.  C. 

Pa.  St.  519;  Diller  v.  Brubaker,  52  Pa.  39  Am.  K.  758. 


908  The  Law  of  Estoppel. 

den}--  the  wife's  title  thereto.*  Where  a  contract  was  made  for 
the  purchase  and  sale,  while  the  title  was  held  by  the  United 
States  in  trust  for  an  Indian  tribe;  after  the  vendor  and  his 
lieir  had  received  all  the  benefits  arisinj^  out  of  the  contract,  the 
heir  sued  the  vendee  to  recover  the  pro|)ert3%  but  was  estopped 
from  asserting  the  invalidity  of  the  contract,  and  from  recovering 
the  property.'  Thus  agents  of  a  ship,  who  had  in  their  accounts 
applied  moneys  they  had  actually  received  to  the  payment  of  dis- 
bursements by  them  for  several  successive  voyages,  were  estop- 
ped from  afterwards  appropriating  these  receipts  to  a  previous 
agency  account  of  the  ship.''  So  where  A.  issued  to  B.  a  letter 
of  credit  for  the  purpose  of  purchasing  goods,  the  bills  of  lading 
were  to  be  made  to  the  order  of  C,  A.'s  agent.  D.  guaranteed 
the  letter  of  credit,  stipulating  that  the  property  purchased  M'ith 
the  bills  of  lading  should  be  pledged  as  collateral,  with  power  to 
sell,  etc.  In  accordance  with  the  agreements,  bills  of  lading 
were  sent  to  C,  who  delivered  them  to  E.  E.  sold  the  goods 
and  made  payments  to  C,  who  applied  tlie  payments  on  the  gen- 
eral indebtedness  of  E.  A.  then  sued  the  guarantor  and  procui-ed 
his  arrest.  He  subsequently  settled  the  suit,  giving  drafts  for 
the  amount  of  the  advances,  knowing  that  the  bills  of  lading  and 
property  had  been  delivered  to  E.,  but  without  any  knowledge  of 
the  payment  and  application  of  the  proceeds  by  C.  In  an  action 
against  the  guarantor  by  the  assignee  of  one  of  A.'s  firm,  upon  a 
draft  given  in  renewal  of  one  of  the  drafts  given  by  the  guaran- 
tor in  the  settlement  of  the  suit  brought  against  him  by  A. ;  the 
guarantor,  in  the  absence  of  fraud  or  mistake,  was  estopped  b^^ 
the  election  and  settlement  made  by  him  from  any  defense  based 
on  C.'s  use  of  the  bills  of  lading  and  proceeds  of  the  goods.  The 
guarantor,  knowing  that  C.  had  parted  with  the  bills,  was  put  on 
inquiry  as  to  the  use  of  the  proceeds." 

§  782.  Equitable  estoppels  are  only  called  into  existence  for 
the  prevention  of  wrong  and  redress  of  injury,  and  will  not  be 
carried  further  than  is  necessary  to  answer  the  purpose  for  which 
they  are  created.  This  forms  the  great  distinction  between  legal 
and  equitable  estoppel.     The  estoppel  known  to  the  earlier  com- 

J  Kloefy  V.  Delles,  45  Wis.  484.  »  Van  Hasselt  v.  Sack,  18  Moo.  P. 

'  Maduska  v.  Thomas,  6  Kas.  lo3.      C.  C.  185. 

*  Kidder  v.  Horrabio,  72  N.  Y.  159. 


Estoppel  in  Pais.  909 

mon  law  took  effect  in  all  cases,  when  once  called  into  being, 
without  regard  to  the  consequences  which  would  result  from  its 
application,  and  produced  an  inflexible  barrier  which  was  incapa- 
ble of  yielding  to  circumstances.'  A  declaration  or  admission 
will  not  give  rise  to  an  estoppel  unless  made  with  full  knowledge 
of  the  right  alleged  to  be  precluded  ;  but  a  man  who  takes  an 
active  part  in  leading  others  into  error,  cannot  ask  that  the  con 
sequences  of  his  mistake  shall  be  thrown  on  them/  When  an 
act  is  done  or  a  statement  made  by  a  person,  which  cannot  be 
contradicted  or  contravened  without  fraud  on  his  part  and  injury 
to  others  whose  conduct  has  been  influenced  by  the  act  or  admis- 
sion, the  character  of  an  estoppel  will  attach  to  what  would 
otherwise  be  mere  evidence.  The  estoppel  must  be  limited 
within  such  bounds  as  are  sufficient  to  pat  those  who  have  dealt 
on  the  faith  of  appearances  that  turn  out  to  be  incorrect,  in  the 
same  position  with  reference  to  the  author  of  such  appearances 
as  if  they  were  true.'  Thus,  a  wife  deserted  her  husband,  and 
after  being  defeated  by  him  in  an  effort  to  obtain  a  divorce,  went 
to  parts  unknown,  and  remained  away  about  three  years.  On 
her  return  to  tlie  neighborhood  of  her  husband,  she  declared  that 
during  her  absence  she  had  obtained  a  divorce,  but  declined  to 
tell  where  she  had  been.  A  few  years  after,  her  husband,  with 
a  view  of  marrying  again  if  she  had  obtained  a  divorce,  sent  a 
messenger  to  inquire  of  her  as  to  the  truth  of  the  matter  I'elating 
to  the  alleged  divorce,  to  whom  she  stated  that  she  went  away  to 
procure  a  divorce  without  interference  from  her  husband,  and 
that  she  did  obtain  a  divorce,  and  hoped  he  would  marry  again. 
Soon  after  he  communicated  this  information  to  the  defendant, 
and  they  were  married;  and  about  the  same  time  his  first  wife 

»  McAfferty  v.  Connover,  7  Ohio  St.  Wis.  383;  Scoby  v.  Thweatt,  28  Tex. 

99  ;  Hill  V.  Epley,  31  Pa.  St.  331;  Ed-  730. 

mondson  v.  Montague,  14  Ala.  370;  ^  Smith    v.    Newton,    38    111.    230; 

Statou  V.  Bryant,  55  Miss.  261.  Knobell  v.  Kircher,  33  111.  SOS;   Rob- 

■^  Whittuker  v.  Williams,  20  Conn,  bins  v.  Mylins,  34  N.  J.  E.  205;   Ilai- 

98;  Thrall  v.  Lathrop,  30  Vt.  307;  Mc-  ley  v.  Franks,  18  La.  Ann.  559;   Hos- 

Aiterty  v.   Coniiovcr,  7   Ohio   St.  99;  tier   v.    Hays,  3   Cal.    302;    Bank    v. 

Dyer  v.   Cady,  20   Conn.  563;  Strong  Keen,  53  Me.  103;  Rice  v.  Buuce,  49 

V.  Ellsworth,    26   Vt.    316;   Steele   v.  Mo.  231;  Schenck  v.  O'Neill,  23  Ilini, 

Putney,  15  Me.  327;   Cloud   v.  Whit-  200;   Hutton  v.  Rossetter,  31  E.  L.  & 

ing,  38  Ala.  57 ;  Colton  v.  Beardsley,  E.  231 ;  Dahlman  v.   Foster,  55  Wis. 

38  Barb.  29;   Dahlman  v.  Foster,  55  384;  Davis  v.  Bowman,  55  Miss.  67. 


910  The  Law  of  Estoppel, 

also  inarrietl  airaiii  and  lived  with  her  second  husband.  A  few 
years  later  the  first  hnsband  died,  childless  and  intestate  ;  there- 
upon his  first  wife,  claiming  to  be  his  heir,  conveyed  a  tract  of 
land,  of  which  he  died  seized,  to  the  plaintiff,  who  brought  this 
action  against  the  second  wife  to  dispossess  her  of  the  land.  On 
the  trial  of  the  case,  the  first  wife  testified  that  she  never  pro- 
cured a  divorce.  The  admissions  of  the  first  wife  that  she  had 
obtained  a  divorce,  though  relating  to  a  matter  of  record,  were, 
as  against  a  party  claiming  Huder  her,  admissible  in  evidence, 
and  warranted  a  finding  upon  such  evidence — corroborated  by 
her  conduct — in  accordance  with  the  truth  of  such  admissions, 
though  contradicted  by  her  unsupported  testimony.'  So  where 
A.  and  B.,  co-partners,  pecuniarily  irresponsible  the  entire  time 
they  were  in  business,  purchased  all  their  goods  in  successive 
parcels  of  C,  a  wholesale  dealer,  on  the  credit  of  D.,  but  with- 
out his  knowledge  or  authority.  They  were  charged,  billed  and 
shipped  to  D.,  the  bills,  by  direction  of  A.,  being  sent  to  A.  and 
B.,  and,  with  the  exception  of  tjie  last  parcel,  were  paid  for  by 
D.'s  checks.  D.  saw  the  bills  for  all  the  previous  parcels  before 
the  last  parcel  was  purchased,  but  did  not  notify  C  that  the 
dealing  was  unauthorized.  In  an  action  by  C.  against  D.  he  was 
estopped  to  deny  his  liability  for  the  last  parcel.'  So  if  a  maker 
of  a  non-commercial  promissory  note  represents  to  one  about  to 
buy  it,  that  it  is  valid,  and  that  there  is  no  defense  to  it,  that  the 
purchase  is  made  on  the  faith  of  this  representation,  an  estoppel 
arises  against  the  maker.^  So  where  land  is  improperly  sold  by 
a  guardian  (jr  administrator,  and  the  heirs  accept  the  purchase 
money,  they  are  estopped  to  afterwards  question  the  purchaser's 
title.*  Again,  if  a  mother  approve  a  deed  executed  by  her  infant 
child,  she  is  estopped  to  claim  as  heir  after  the  child's  death  on 
the  ground  that  the  child  was  not  of  age." 

§783.  No  equitable  estoppel  can  arise  without  proof  that  a 
wrong  has  been  done,  or   is  threatened,  on  one  side,  and   injury 

•  Edgar  V.  Richardson,  33  Ohio  St.  *  Morris   v.    Stewart,  14   Ind.   334; 

581;  S.  C,  31  Am.  K.  571.  Terb  v.   Lash,  76   Ind.    453;   Robert- 

=  Wiiilou  V.  Hart,  39  Coun.  16.  son  v.  Bradford,  73  Ala.  110. 

2  Reese  v.  People,  10  lud.  37;  Rose  =  Johnson  v.  Rockwell,  13  Ind.  76; 

V.  Hurley,  39  Ind.  77;  Vaughan  v.  Fcr-  Wiserman  v.  Macy,  20  Ind.  239. 
rail,  57  Ind.  183;  Post,  ch.  xvi. 


Estoppel  in  Pais.  911 

sufiered,  or  jnstlj  to  be  apprehended  from  it,  on  the  other,  nor 
unless  the  injury  is  so  closely  connected  with  the  wrong  that  it 
might  and  ought  to  have  been  foreseen  by  the  guilty  party.' 
There  must  be  some  degree  of  wrong,^  for  a  statement,  innocent 
in  itself,  and  susceptible  of  being  withdrawn  or  contradicted, 
cannot  be  rendered  binding  by  anything  that  occurs  subsequently, 
unless  it  is  made  with  full  knowledge  that  it  will  or  may  be 
acted  upon,^  when  the  mere  attempt  to  retract  is,  in  itself,  a 
wrong.  The  first  step  in  charging  a  party  with  the  consequences 
of  a  false  impression  on  which  another  has  acted,  is  to  know  that 
he  knew  the  impression  existed  and  the  result  to  which  it  would 
lead  if  not  corrected.*  No  estoppel  can  grow  out  of  the  answer 
to  a  question  put  incidentally,  and  without  communicating  the 
intention  of  the  party  who  asks  it,  to  be  guided  by  the  reply,  ^ 
because,  under  these  circumstances,  whatever  may  be  the  injury 
on  the  one  side,  there  is  no  implied  fraud  on  the  other.°  To  cre- 
ate an  estoppel  by  one's  statement,  it  must  appear  that  the  party 
inquiring  had  an  interest  in  the  subject  matter,  that  this  was 
known  to  the  one  answering,  and  that  the  statement,  being  relied 
on,  caused  a  change  of  such  party's  action,  to  his  detriment.'' 

§  784.  Equitable  estoppels  are,  in  a  great  degree,  designed  to 
prevent  circuity  of  action  by  preventing  injuries  b}^  wliich  redress 
w^ould  have  to  be  sought  by  suit,  and  cannot  arise  unless  the  evi- 
dence discloses  some  default  or  fraud  for  wliich  compensation 
might  be  awarded  by  equity  or  law.^  The  wrong  must  be 
coupled  with  an  injury,  and  Avith  injury,  that  is  the  legal  result 

^  Copeland  V.  Copelaud.  2SMe.  525;  *  White  v.    Langdon,    30  Vt.   599; 

Abel  V.  Fitch,  20  Conn.  90;  Whittaker  Foster   v.    Ins.  Co.,  8  Ellis  &  B.  48; 

V.   Williams,   20  Conn.    98;   Dyer  v.  Howard  v.  Hudson,  2  Ell.  &  B.  1. 

Cady,  20  Conn.  563;  Martin  v.  Augell,  *  Hill  v.  Epley,  31  Pa.  St.  331;  Frfe- 

7    Barb.   644;  Pennell  v.   Heanian,  6  man  v.  Cooke,  2  Exchq.  654;  Hackelt 

Barb.  644;  Truscott  v.  Davis,  4  Barb.  v.  Callender,  32  Yt.  97. 

495;  PauU  v.  Oliphaut,  14  Pa.  St.  492;  =  Peirce  v.  Andrews,  6  Cash.  4. 

Parker  v.  Brown,  15  N.  H.  176;  Califl  «  Wakelield  v.  Crossman,  25  Vl.  290; 

V.  Hillhouse,  3  Minn.  311;  Lounsbury  Piper  v.  Gilmore,  49  Me.  149;  Mackey 

V.  Depew,   28   Barb.    44;   Dechard  v.  v.  Holland,  4  Met.  69;   Pierce  v.  An- 

Blanton,  3  Sneed,  373.  drews,  6  Cush.  4. 

*  Crest  V.  Jack,  3  Watts.  238;  Com-  '  Allura  v.  Perry,  68  Me.  232. 

monwealth  v.    Moltz,  lOPa.  St.  521;  »  Jackson  v.    Waldrou,    13  Wend. 

Taylor  v.  Ely,  25  Conn.  250.  178. 


912  The  Law  of  Estoppel. 

of  tlie  wrong/  for  where  the  public  is  not  a  part}-,  and  the  suit  is 
a  purely  private  one,  courts  of  justice  sit  for  the  purpose  of 
awarding  redress  und  compensation,  and  not  for  that  of  inflicting 
punishment.  Therefore,  an  estoppel  does  not  arise  and  will  not 
grow  out  of  a  mere  falsehood,  however  flagrant,  unless  its  results 
are  such  as  to  render  the  action  of  the  law  necessary  to  prevent 
some  one  who  has  been  misled  by  it  from  suffering,  on  the  one 
hand,  or  the  guilty  party  from  gaining  an  undue  advantage,  on 
the  other. 

§  785.  To  give  rise  to  an  equitable  estoppel,  there  must  be  a 
willful  representation  by  one  party,  made  with  an  intention  that 
it  should  be  acted  on  by  the  other ;  or,  where  they  are  of  a  nature 
to  be  injurious,  injury  may  be  inferred ;  that  is,  no  one  should 
be  estopped  from  alleging  the  truth,  unless  his  false  assertion  or 
equally  culpable  silence  have  been  the  inducement  to  a  course  of 
action  which  would  result  in  a  loss,  if  he  were  permitted  to 
change  his  position,  and  enforce  the  right  which  he  has  thus 
expressly  or  virtually  waived.  The  question,  in  such  cases,  is  not 
so  much  what  was  meant,  as  what  the  meaning  must  have  been 
understood  to  be ;  and  a  man,  who  uses  words  that  can  onl}'  be 
interpreted  by  those  to  whom  they  are  addressed  as  an  unquali- 
fied assurance,  will  not  be  permitted  to  allege  subsequently,  to 
their  injury,  that  he  wished  or  intended  them  to  be  taken  in  a 
different  sense.'''     Thus  where  M.  sold  a  mule  to  W.,  the  title  to 

>  Casey  v.  luloes,  1  Gill,  4S0;  Tnum  Saunders,   27  Mich.  347;    Wilcox  v. 

V.  Kiclfer,  31   Ala.   138;  IScwman  v.  Howell,    44    N.    Y.  398;    Brown    v. 

Edwards.  32  Pa.  St.  82;  Forsythe  v.  Bowen,  30  N.  Y.  541;  Graves  v.  Blon- 

Day,  40  ]\Ie.  176;   Cummings  v.  Web-  dell,  70  Me.  190;  Conrad  v.  Gallery. 

ster,  43  Me.  192;  Davidson  v.  Young,  22  La.  Ann.  428;  Barnard  v.  Campbell, 

38  111.  140.  5,5  N.   Y.   456;    Lacy  v.   Wilson.   24 

»  Patterson  v.  Lyttle,  11  Pa.  St.  53;  Mich.    479;   Carr  v.    R.    R.  Co..  Ill 

Simons  V.  Steele.  36  N.  H.  73;  Whar-  Mass.  1;  Couniham  v.  Thompson,  111 

ton    V.    ILirdisty,     8    El.   &  B.  232;  Mass.    270;   Wiieelock   v.    Hardwick. 

For.'^ylh  v.  Day,  46  Me.  176;  Kuhl  v.  48  Vl.  119;  Adkins  v.  Adkins,  48  Ind. 

Mayor,  23   N.  J.  E.  84;   Williams   v.  12;  Eitel  v.  Bracken,  38  N.  Y.  Super. 

Chandler,  25  Tex.  4,  Howard  v.  Cole-  7;  Collins  v.  Case,  23  AVis.  230;  State 

man. 36  Ala.  721;Judovine  v.Goodrich,  v.  Ruby,  52  Mo.  396;  Morgan  v.  H.  IJ. 

3<5   Vt.    19;    Calauan   v.  .McClure,  47  Co.,  96  U.  S.  716;  Cole  v.  Bolaud,  23 

Barb.  206;  Wiuton  v.  Hart,  30  Conn.  Pa.  St.  431;  HoldCii  v.  Torrey,  31  Vt. 

16;   Plumer  v.    Lord,   9    Allen,    455;  690;  Phillips  v.   Imthurn,  L.  R.  1   C. 

Andrews  v.  Lyon,  11  Allen,  349;  Bates  P.  403;  Bank  v.  Bank,  50  K  Y.  575; 

V.  Leclaire,  49    Vt.  229,  Manley    v.  Helmsley   v.  Loader,  2    Camp.   450; 


Estoppel  In  Pais.  913 

reinaiii  in  M.  till  the  price  be  paid  or  secured ;  G.  informed  M. 
that  he  wished  to  buy  the  mnle,  and  asked  M.  if  he  had  any  claim 
thereon;  M.  replied:  "I  have  no  mortgage  on  him  and  do  not 
expect  to  have  any ; "  and  Gr.  traded  with  W.  for  the  mule  ;  M. 
was  estopped  to  set  up  title  therein.*  So  where  a  party,  in  reply 
to  a  request  for  a  license  to  do  something  concerning  his  property, 
answered  in  ambiguous  language,  intending  not  to  grant  the 
request,  but  to  convey  the  impression  that  he  did  grant  it,  and 
the  other  party  received  such  impression  and  acted  upon  it,  the 
former  was  bound  to  the  same  extent  as  if  he  had  expressly 
assented.* 

§  786.  The  doctrine  of  equitable  estoppel  is  founded  upon  the 
principle  that  a  party  lias,  by  his  own  voluntary  act,  placed  him- 
self in  such  a  situation  in  regard  to  some  fact  that  he  is  precluded 
from  denying  it.'  Its  applications  to  the  dealings  and  contracts 
of  men  is  a  salutary  one — that  a  man  shall  not  be  permitted  to 
deny  what  he  has  once  solemnly  acknowledged.  Thus  R.  &  J., 
partners,  having  agreed  to  sell  a  horse  to  each  of  four  colored 
men,  caused  C.  to  draw  up  a  receipt  for  the  four  horses,  which 
was  signed  by  the  purchasers,  but  by  neither  R.  nor  J.,  reciting 
that  the  purchasers  had  severally  received  from  C.  the  horse 
respectively  contracted  for,  that  they  were  jointly  responsible  for 
the  payment  to  C.  of  the  prices  specified,  and  for  the  forthcom- 
ing of  the  horses  on  failure  of  payment,  and  whcTi  the  whole  was 
])aid,  C.  was  to  make  to  each  man  a  good  title  to  his  horse,  the 
title  to  all  to  remain  in  C.  "until  the  last  dollar  is  paid."  R.  & 
J.  were   estopped   to  deny   that   the  legal  title  was  in   C.''     So 

O'Brien    v.   Wetherell,   14    Kas.   616;  Pitney,  39  111.  468;  Stimpson  v.  Bauk, 

Gotham   v.    Gotliam,   55   K   H.   440;  28  Me.  259;  Ogden  v.  Waller,  6  Dana. 

Eaton  V.  Winne,  20  Mich.  156:  Lips-  420;  Russell  v.   Watt,   41  Miss.   602; 

comb  V.  II.)lme^;,  2  Camp.  441;   Rich-  Corbett   v.    Norcross,    35   N.    H.   99; 

mond    V.   R.   R.   Co.,  33    Iowa,  422;  Morehouse  v.   Cottreal,  22    N.  .T.  L. 

Mercer   v.    3IcKee,    77    Pa.    St.    170;  521;  Hill  v.  Hill,  4  Barb.  419;   Xaglee 

Hooker  v.  Hubbard,  102   Mass.  239;  v.   Ingersoll,   7  Pa.   St.  185;  Root  v. 

Payne  V.  Burnham,  62  N.  Y."  69.  Crook,   7  Pa.   St.  378;  Perry  v.  Cal- 

'  Grace  v.  McKissack,  49  Ala.  163;  houn,  8  Humph.  551;  Crooks  v.  Dou- 

*  Judovine  v.  Goodrich,  35  Vt.  10.  glass,  56  Pa.  St.  51 ;  Pierson  v.  David, 

'  Coe  V.  Talcott,  5  Conn.  88;  Sim-  1  Iowa,  23;  Att'y  Gen'l  v.  Wharf  Co., 

mons   V.   Hendricksou,  3    Harr.   103;  12  Gray,  553. 

Bank  v.  Eldred,  6  Biss.  370;  Brown  v.  *  Rice  v.  Crow,  6  Heisk.  (Tenn.)  28. 
Vol.  1.-58 


914  The  Law   of   Estoppel. 

where  a  piircliascr  knows  at  the  time  of  pnrcliasing  tliat  Iiis  ven- 
dor's title  to  the  goods  purchased  is  derived  from  mortgages  exe- 
cuted to  them  by  a  bankrupt  vs^ho  has  failed  in  business  and  has 
no  other  property,  he  is  bound  to  ascertain  the  nature  of  the 
transactions  between  his  vendor  and  such  bankrupt,  and  is  estop- 
ped from  afterwards  claiming  to  have  been  a  Ixmafide  purchaser 
without  notice.'  They  will  not  be  carried  further  than  is  neces- 
sary for  the  attainment  of  the  object,  and  they  may  be  waived  or 
enforced  at  the  pleasure  of  the  party  who  has  acted  on  the  faith 
of  the  representation  or  admission  out  of  which  they  arise.  The 
technicalities  incident  to  estoppels  have  been  gradually  giving 
way  to  considerations  of  reason  and  practical  utility,  and  the 
courts  seem  dis])osed  to  give  force  and  efficacy  to  a  doctrine 
which  is  based  upon  principles  of  justice  and  the  purest  morality. 

§  787.  Equitable  estoppels  are  as  binding  upon  parties  and 
privies  as  legal  estoppels,  and  are  as  effectual  in  courts  of  law  as 
in  equity.  The  act  or  assertion  must  be  willful,  with  intent  to 
deceive  the  other  party.  Parties  are  only  estopped  from  denying 
their  own  acts  when  the  denial  operates  to  the  injury  of  another, 
and  when  such  expressions  are  expressly  designed  to  and  do 
influence  the  conduct  of  such  person.  '•  An  admission  by  the 
defendant  intended  to  influence  the  conduct  of  the  n)an  with 
whom  he  is  dealing,  and  actuall}'  leading  him  into  a  line  of  con- 
duct which  must  be  prejudicial  to  his  interest,  unless  the  defend- 
ant be  cut  off  from  the  power  of  retraction,  is  the  very  definition 
of  an  estoppel  in  pais^"^  But  a  man  can  be  estojiped  from 
denying  only  what  he  has  once  admitted.  An  estoppel  in  pais  \s, 
to  be  resorted  to  solely  as  a  measure  to  prevent  injustice. 
Always  as  a  shield,  but  never  as  a  sword.*  Where  a  party  fails 
to  make  his  rights  known,  where  fairness  and  good  conscience 
reqnii-e  that  he  should  do  so  to  protect  the  interest  of  otliei-s,  he 
«annot  be  heaixl  as  against  them  to  assert  such  rights.*    Estoppels 

»  Rison  V.  Knapp,  1  Dill.  186.  3frl;  Royce  v.  Watrous,  73  N.  Y.  597; 

""  DcvxH  V.  Otkll,  3  Ilill,  215;  Colter  Campljell  v.  Nichols,  33  N.  J.  L.  81; 

V.   Galloway,  68  lud.  219;    Payne  v.  Gillelaiid  v.  Failinif,  5  Denio,  308. 
Burnbam,  (52  N.  Y.  69;  Andrews  v.  4  Lloyd  v.   Lee.  45  111.  277;  Colter 

Keith,  34  Ala.  122;  Reynolds  v.  Loiins-  v.  Galloway,  68  Tnd.  219;  Iluntsiuker 

bury,  (i  Hill,  534.  v.  Clark,  12  Mo.  333;  Smitb  v.  Smith, 

*  Fieirepont    v.    Barnard,    5    Barb.  30  Conn.  111. 


Estoppel  in  Pais.  915 

inj}<^'i'S,  as  well  as  those  which  are  technical  estoppels,  must  be 
reciprocal/  and  a  stranger  can  neither  take  advantage  of  nor  be 
bound  by  the  estoppel. 

§  7S8.  A  person  who  intcntionallj^  or  by  culpable  negligence 
induces  another  to  act  on  his  representations  will  be  estopped 
from  denying  their  truth.  Under  the  circumstances  creating  the 
estoppel,  representations  made  by  words,  acts,  or  silence  when 
duty  requires  the  party  to  speak  are  conclusively  presumed  to  be 
true  as  against  him  and  in  favor  of  the  person  whom  he  has 
misled.  The  estoppel  is  called  into  life  for  the  purpose  of 
preventing  wrong  and  redressing  injury,  and  being  never  carried 
further  than  is  necessary  to  prevent  one  party  from  being  injured 
by  his  reliance  on  the  acts  of  another,  and  therefore  no  declara- 
tions or  acts  give  rise  to  an  estoppel  unless  they  have  been  relied 
and  acted  upon,  and  unless  theii-  denial  would  prejudice  the  per- 
son in  whose  favor  the  estoppel  is  introduced.  Thus  a  declara- 
tion or  act  retracted  before  it  is  acted  upon,  does  not  raise  an 
estoppel ;  it  may  exist  for  one  purpose  and  not  for  another  and 
in  favor  of  one  person  and  not  in  favor  of  another  though  grow- 
ing out  of  the  same  transaction.'^ 

Thus,  if  a  settler  entitled  hy  improvement  to  four  hundred 
acres  of  land  gives  to  a  purchaser  of  ISO  acres  thereof,  a 
written  statement  that  he  lias  no  right  to  the  improvement, 
though  this  may  be  an  estoppel  to  180  acres,  it  cannot  be 
used  by  one  claiming  the  remainder,  without  any  considei-ation 

1  Canal  Co.  v.  Hatlieway,  8  Wend.  Ala.   370;  Bentley  v.   Cleavelaiid,   23 

480;   Burton  v.   Farinliolt,   86   N.  C.  A\n.   814;  Wright   v.   Hazen,   24  Vt. 

260;   Fertilizer  Co.   v.  Guano  Co.,  19  143;  Alexander  v.  Waller,  8  Gill,  239; 

Hun,  47;  Maduska  V.  Thomas,  6  Kas.  Cuttle   v.    Brockway,  32   Pa.  St.   35: 

153;  McKellup  v.  Jackman,  50  Vt.  71 ;  Watson  v.  Hewitt,  45  Tex.  472:  HUl 

Scbeuck    V.    O'Neill,    23    Hun,  209;  v.   Epley,   31   Pa.   St.   331;   Wood  v. 

Stiuchfield  v.  Emerson,  52   Me.  465;  Parnell,  51  Me.  52;    Montgomery   v. 

Fitzsimmons  V.  Joselyu,  21  Vt.   129;  Gordon,  51  Ala.  377;  Callow  v.  Jeukiu- 

Dickersou  v.  Colcgrove,  100  U.  S.  578;  son, 5  E.  L.  &  Eq.  583;  Wood  v.  Seeley, 

Hart  V.  Bank,  39  Vt.  252;  Averill  v.  32  N.   Y.  105;  Parker  v.  Crittenden, 

Wilson,  4  Barb.   80;    Cohoes  Co.   v.  37  Couu.  148. 

Goss,  13  Barb.   137;  Louis  v.   (.'aslle-  2  Brusley  v.  Hamilton,  15  Pick.  40; 

man,  27Tex.  407;  Dempsey  V.  Tylee,  Wilder   v.    St.    Paul,    12    Minn.   192; 

3  Duer,  73;  R.  R.  Co.  v.  Sclmyler,  38  Combs  v.  Cooper,  5  Minn.  254;  Miller 

Barb.  534;  Edmunds  v.  Montague,  14  v.  Cresson,  5  W.  «&  S.  384. 


916  The  Law  of  Estoppel. 

paid  the  settler  or  evidence  that  the  purchaser  was  deceived  by 
it  so  as  to  purchase  or  expend  money  on  the  faith  of  it.i 

§  T89.  Dechvrations  made  by  one  party,  and  acted  upon  by 
the  otiier,  and  his  action  thereby  changed  to  his  injury,  operate 
in  the  way  of  estopjyel  up'on  the  party  making  them.  Thus  a 
party  wliu  lias  receipted  for  goods,  as  the  property  of  the  defend- 
ant in  attachment,  may  prove  property  in  himself  in  a  subsequent 
suit  brought  for  the  goods  by  the  plaintiff  in  attachment,  in 
mitigation  of  damages  can  neither  be  benefited  by  the  goods,  nor 
injured  by  their  loss,  unless  they  actually  belong  to  the  defend- 
ant ;  but,  if  it  is  shown  that  there  was  other  property  of  the 
defendant  in  the  attachment,  which  would  have  been  seized  but 
for  his  acts  and  declarations,  he  will  be  estopped  from  proving 
title  subseqnentl}'  either  in  mitigation  of  damages  or  in  bar.* 
While  a  man,  whose  goods  are  wrongfully  sold  under  a  wa-it 
against  another  may  bid  at  the  sale  to  raise  their  price  to  a  fair 
value,  and  witli  a  view  to  his  own  protection,  without  losing  the 
right  of  redress  from  the  officer  making  the  sale ;'  he  is  estopped 
from  questioning  the  title  of  the  purchaser.  The  interference 
by  parties  interested  in  a  judicial  sale,  to  prevent  a  fair  and  usual 
sale  to  the  highest  bidder,  as  by  making  arrangements  with  per- 
sons who  intended  to  bid  at  the  sale  to  protect  their  interests, 
w"hereby  they  were  deterred  from  bidding,  is  enough,  of  itself,  to 
estop  them  from  claiming  a  deficiency  on  the  sale,  which  they 
have  been  the  means  of  creating  ;  and  their  action  at  law  for  an 
alleged  deficiency  so  created  will  be  enjoined  in  equity."  So 
where  a  woman  takes  an  active  part  in  misleading  the  sheriff,  and 
asserts  that  she  is  the  wife  of  the  execution  debtor,  knowing  the 
assertion  to  be  untrue,  she  is  then  herselt"  the  cause  of  the  injury 
of  which  she  complains,  and  is  estopped  from  disputing  the  accu- 
racy of  her  representation.^     And  if  the  evidence  shows  that  she 

'  Miller  v.  Cresson,  5  W.  &  S.  284.  v.  Richards,  21  Ala.  424;  Tappan  v. 

2  Dewey  v.  Field,  4  Met.  181;  Stone  Morseraan,    18  Iowa,  499;   Stanley  v. 

V.  Du;ikin,  2  Camp.  34G;  Cluipman  v.  Green,  12  Cal.  148. 

Searles,  3  Pick.  38;   Hearn  v.  Roger.'^,  ^  Hearu  v.   Rogers,    9   Barn.  «&   C. 

9  B.  &  C.  577;  Cocker  v.  Kuykendall,  586;  Chiapella  v.  Brown,  14  La.  An. 

41  Miss.  65;  Ryers  v.  Farwell,  9  Barl).  189. 

615;  McCU-llan   v.    Kennedy,    8   Md.  •»  lunes  v.  Stewart,  36  Mich.  285. 

230:   Duel   v.    River   Co.,  5   C:il.  84;  »  Langford   v.  Foote,  2    M.   &   Sc. 

Bank  v.  Leonard,  43  Me.  344;  Pound  349. 


Estoppel  ix  Pais.  917 

had  given  the  property  to  the  man  witli  whom  she  co-habited, 
and  had  made  him  the  owner  of  it,  the  sheriff  will  then  have  a 
right  to  seize  it.'  Every  person  who  by  misrepresentation  or 
misstatement,  causes  an  officer  charged  with  the  execution  of  legal 
process  to  make  a  mistake  and  arrest  the  wrong  person,  or  seize 
his  goods,  can  not  complain  of  the  wrong  which  he  lias  himself 
occasioned.  If  by  misrepresentation  he  causes  himself  to  be 
arrested,  he  is  the  author  of  his  own  misfortune,  and  has  no  right 
to  charge  it  upon  the  officer.^  Thus  where  a  sheriff  had  a  writ 
commanding  him  to  arrest  A.  and  took  into  custody  ''  B."  who 
represented  that  she  was  the  person  named  in  the  writ.  The 
sheriff  after  ascertaining  his  mistake  was  compelled  to  discharge 
B.,  but  B.  was  estopped  by  her  representations  from  suing  the 
sheriff  for  the  original  taking.^ 

§  790.  In  order,  however,  to  raise  an  admission  or  statement 
by  one  party  from  the  rank  of  evidence  to  the  dignity  of  an 
estoppel,  it  must  not  be  shown  that  its  retraction  would  be 
injurious  to  the  other,  but  that  the  injury  results  from  a  course  of 
action  induced  by  the  admission.^  Thus,  where  a  man  bitten  by  a 
dog  asked  a  woman  as  to  who  owned  it,  and  she  said  it  belonged 
to  her,  he  accordingly  sued  her.  Held,  that  she  would  be 
estopped  from  denying  ownership  on  the  trial  if  she  knew  that 
the  inquiry  was  made  for  the  purpose  of  finding  out  who  was 
liable  for  the  injury. °  One  who  professes  to  be  an  incumbent  of 
an  office  and  performs  the  duties  of  the  same,  is  estopped  from 
denying  the  legality  of  his  appointment,  for  the  purpose  of 
escaping  liability, °  and  if  a  man  induces  a  tradesman  to  supply  a 

'  Edwards  v.   Farebrother,  2  M.  c%  Camp.  513;  Rex  v.  Borrett,  6  C.  &  P. 

P.  293.  124;  Trobridge  v.  Baker,  1  Cow.  251; 

"-  Fisher  v.    3iragnay,    5   M.   &   Gr.  Eldred  v.  Hazlitt,  33  Pa.  St.  307;  Cat- 

778.  lin  V.  Grote,  4  E.  D.  Smith,  29G;  Wool- 

2  Dunston  v.  Patterson,  2   C.  B.  N.  ley  v.  Edson,    35  Vt.    214;  White   v. 

S.  495;  26  L.  J.  C.  P.  268.  Langdon,    30   Vt.    599;  Carpenter   v. 

•»  Dunston  v.  Patterson,  2  C.  B.  N.  StiUwell,  11  N.  Y.  61;  Cambridge,  etc. 

S.  495;  Moore   v.  Bowman,  47  N.  H.  Co.  v.  Littlefield,  6  Ciish.  210;  Bank  v. 

494;  Lewis  v.  Lanphere,  79   III.  187;  Clark,  28   Vt.   325;  Forsythe  v.  Day. 

Rigney  V.  Smith,  39  Barb.  393;  Cocke  46  Me.  176;  Reeves  v.    Mathews,    17 

V.  Kuykendall,  41  Miss.  65;   McCune  Ga.   449;    Reynolds   v.    Louisberg.    6 

V.  McMichael,  29  Ga.  ^12;  Ladr;ck  v.  Hill,  534. 

Briggs,  105  Mass.  508;  Bevans  v.  Will-  ^  Robb  v.  Shephard,  50  Mich.  189. 

iams,  3T.  R.  635;  Rex  V.  Gardner,  2  «  State   v.    Long,    76    N.    C.    254; 


918  The   Law  of  Estoppel. 

Avoiiian  with  goods  by  represeTitationsthat  she  is  his  wife,  he  will 
be  conchided  by  the  representation  and  will  not  afterwards  be 
permitted  to  show  tluit  she  was  not  his  wife/  and  so  where  an 
M'-'ent  represents  that  lie  is  the  principal."  So,  where  a  plaintifi; 
was  elected  to  till  an  office,  whose  term  ran  for  three  years  ;  two 
years  afterward,  he  having  sometime  neglected  to  perform  the 
duties  of  the  office,  a  meeting  was  called  to  till  the  vacancy,  at 
which  he  was  present ;  he  did  not  object  to  the  proceedings,  nor 
to  the  entry  upon  the  duties  of  the  office,  of  the  person  elected  at 
this  meeting.     He  was  estopped  to  deny  the  title  of  such  person.' 

§  791.  Equitable  estoppels  are  always  applicable  in  cases 
where  an  attempt  is  made  to  assert  a  right,  subsequently,  to  the 
injury  of  others,  which  was  waived  by  acquiesceuce  at  the  time.* 
Tlius,  a  man  who  induces  another  to  comply  Avith  an  award  by 
alleijing  that  the  submission  embraced  all  his  demands,  is 
estopped  from  afterwards  enforcing  a  claim  which  was  fraudu- 
lently withheld  from  tlie  arbitrators."  Where  a  claimant  allows 
a  suit  to  be  brought  in  the  court  of  claims  for  the  use  and  ben- 
elit  of  another,  assists  in  its  prosecution,  and  virtually  stands  by 
and  sees  it  settled,  lie  is  estopi>ed  from  alleging  his  own  adverse 
interest  against  a  settlement  made  before  his  new  position  was 
assumed."  And  in  the  same  way  a  party  who  prevents  a  plaint- 
iff in  an  action  from   exacting   bail,  by  an  assurance  that  he  has 

Hooper  V.  Stewart,  25  Ala.  408;  Ran-  Free,  9  B.    &   C.  167;   Lipscomb    v. 

dall  V.  Dusenbuiy,   39   N.    Y.   Super.  Holmes,  2  Campb.  442. 

174:  Portis  v.  Ciimmings,  31  Tex.  265;  =  Rayner  v.  Grote,  15  M.  &  W.  359; 

Bethel  v.  M::sou,  55  Me.  501 ;  Bryaa  v.  Bickeiston  v.  Burnell,  5  M.  &  W.  359; 

Walton,  14  Ga.   185;  Keith  v.   B.ink,  Humble    v.    Hunter,   12    Q.    B.   310; 

44  N.  H.  174:  State  v.  Sellers,  7  Rich.  Schmalz  v.  Avery,  10  Q.  B.  555;   Cox 

368;  McMiihou  v.  Allen,  4  Ed.  Smith,  v.  Hubbard,  4  C.  B.  318;  Cooke  v.  Wil- 

519;    State  v.    Stone,   40  Iowa,   547;  son,  1  C.  B.  N.  S.  153. 

Byrne  V.  State,  50  Miss.  688;  Marshall  -*  Col  ton    v.    Beardsle}\    38    Barb. 

V.   Hamilton,  41   Miss.   229;   State  v.  29. 

Cansler,  75  N.  C.  442:  Thompson  v.  ■•  Canal  Co.  v.  Lewis,  12  K  J.  E. 

Bondurant,  15  Ala.  346.  323;    Luter    v.    Rose,    20   Tex.    639; 

'  Watsun  V.  Threkeld,  2  Esp.  6.S7;  Lucas  v.  Clarke,  5  Iowa,  14,  Hunt  v. 

Robinson  v.    Mahon,  1    Campb.  245;  Coon,  9  Ind.  537. 

Jennings  v.    "Whittakcr,    4  ilon.    50;  ^  Wyman  v.  Perkins,  39  N.  11.  218; 

Pondei^  V.  Graham,  4  Fla.  23;  Munro  Muhlmau  v.  Ins.  Co.,  6  W.  Va.  508. 

V.  De  Chamant,  4  Campb.  215;  Case  *  Stow  v.  United  States,  5  Ct.  of  CI. 

V.   Farrer,  12  Minn.  89;  Johnston  v.  362. 
Allen,  39  How.   Pr.    506;  Blades  v. 


Estoppel  in  Pais.  919 

already  entered  into  a  recognizance  for  tlie  appearance  of  the 
defendant,  is  estopped  by  his  action  from  relying  on  the  insuffi- 
ciency of  the  recognizance  as  a  defense  to  a  suit  brought  upon  it 
for  the  debt.'  But  where  both  parties  know,  or  have  the  means 
of  knowing,  and  each  is  qqnaliy  in  fault,  neither  can  have  any 
equitable  claim  to  relief  against  the  other,''  and  it  matters  not  that] 
means  were  used  to  deceive,  if  the  other  party  was  not  in  point  of; 
fact  misled.*  The  estoppel  is  not  extended  bej^ond  its  require- 
ment to  prevent  one  party  from  being  injured  by  his  reliance  upon 
the  acts  or  declarations  of  the  other.*  Where  the  possession  of 
goods  is  obtained  on  the  faith  of  an  admission  of  the  right  of  a 
person  from  Avhom  it  is  derived.  The  admission  is  only  binding 
while  possession  is  retained.^  This  rule  is  the  same  in  every  case 
where  the  admission  is  relied  on  as  conclusive,  and  liuiits  the 
estoppel  to  what  is  necessary  to  put  the  parties  in  the  position 
which  they  would  have  occupied  had  the  admission  not  been 
made.' 

§  792.  In  order  to  create  an  estoppel  in  pais,  or  equitable 
estoppel,  as  defined  and  established  by  the  law  at  the  present 
time,  there  must  be  an  admission  intended  to  influence  the  con- 
duct of  the  man  witli  whom  the  party  is  dealing,  and  actually 
leading  him  into  a  line  of  conduct  prejudicial  to  his  interest, 
unless  the  party  estopped  be  cut  olf  from  the  power  of  retrac- 
tion.    As  stated  by  Bronson,  J.,'  to  constitute  an  estoppel  in  pais 

>  Hawly  V.  Middlcbiook,  28  Conu.  low3:l  GiUsla  ndv.  Rliodes,34  Pa.  St. 

527.  187;   Kinnear  v.   Mackej-,   85  111.   96; 

*  Commonwealth   v.  Moltz,   10   Pa.  Kloety  v.  Delles,45  V\'is.  484;  Berlin  v. 

St.  527;  Foster  V.   Albert,  42  lud.  40.  Gilly,    13  La.  Ann.  4G1;    Sebright  v. 

=*  Jewel t    V.    ]\Iiller,   10  N.  Y.  402;  Moore, 33  Mich.  92;  Colwell  v.Brower, 

Larkins' Appeal,  38  Pa.  St.  427;  Brown  75  111.  510;   Howell  v.  Bank,  5  Bush, 

V.  AV heeler.  17  Conn.  343;  Cornell  v.  1)3;  Cornelius  v.  Buford,  28  Tex.  202; 

Mastiu,  35  Barb.  157;  Schipper  v.  St.  Caldwell    v.    Auger,    4    Minn.    217; 

Palais,  37  Lid.  505.  Walling  v.    Brown,   7   S.   &   Pv.  467; 

■»  Kinney   v.  Farnsworth,  17  Conn.  Taylor  v.  Parkhurat,  1    Pa.   St.   197; 

355;  Miller  v.  Cresson,  5  W.  &  S.  284;  Kelly    v.    Eichmaii,    3    Whart.    419; 

Puyter    v.    Ins.    Co.,    52    Barb.    447;  Walker    v.    Barnard,    C.    &    N.   82; 

Campbell  v.  Nichols,  33  N.  J.  L.  181.  Anderson   v.    Coburn,    27   Wis.    566; 

f*  Johns  V.  Church,  12  Pick.  557.  Malloney  v.    Horau,    49   N.    Y.   Ill; 

« Bocock  V.  Pavey,  8  Ohio  St.  270;  Brown    v.    Bowen,    30    K     Y.   541; 

Muhlman  v.  Ins.  Co.,  6  W.  Va.  508.  Stephen  v.  Balrd,  9  Cow.  277;  Pres- 

'  Dozen  V.   Odell,  3  Hill,  215;  fol-  byterians  v.  Williams,  9  Wend.  147; 


920  The  hwv  of  Estoppkl. 

against  a  party,  there  must  he,  1st,  an  admission  iiieonsistcnt 
Avitli  tlic  evidence  wiiieli  lie  luis  proposed  to  give,  or  the  title  or 
claim  which  he  ])roi)Oses  to  set  np;  2d,  an  act  done  by  the  other 
party  on  the  faith  of  such  admission  ;  3d,  an  injury  to  him  by 
allowing  the  injury  to  be  disproved.  Tliis  definition  shows  that 
the  diiT(M'ence  between  this  kind  of  estoppel  and  legal  estoppels 
is,  that  the  inference  that  the  admission  was  the  basis  of  the  act 
or  covenant  and  cannot  be  justly  retracted,  which  is  drawn  in 
the  one  case  by  the  law  from  the  seal,  and  must  be  supplied  in 
the  other  by  proof.  Thus,  where  a  party  Avho  had  pointed  out 
certain  property  as  belonging  to  an  execution  debtor,  and  stands 
by  and  sees  the  sheriff  sell  it  as  the  property  of  the  defendant, 
he  is  estopped  from  contradicting  these  statements  and  proving 
property  in  himself,  and  this  principle  extends  to  every  case 
where  an  unauthorized  sale  is  expressly  or  impliedly  sanctioned 
by  the  OMnier,  and  it  estops  him  from  setting  up  his  own  right 
against  the  purchaser.  If  by  a  frandulcnt  contrivance  of  the 
owner,  an  officer  is  induced  to  attach  the  property  of  another 
than  the  defendant  in  the  writ,  either  by  representation  or  acts, 
and  the  officer,  relying  upon  such  holding  out  by  the  owner, 
attaches  the  })roperty,  and  thereby  the  property  of  the  defendant 
is  suffered  to  escape,  the  owner  will  be  estopped  to  set  up  title  in 
himself.'  So,  where  a  person  is  in  possession  of  a  piano  belong- 
ing to  a  defendant  in  execution,  also  had  one  of  her  own  very 
much  resembling  it,  both  of  which  were  boxed  for  shipment, 
and  when  called  on  by  the  officer  to  point  out  that  belonging  to 
the  defendant,  so  acted  as  to  induce  the  officer  to  levy  upon  lier 
own,so  fhatshe  might  fraudulently  ship  the  other,  and  thus  defeat 
the  collection  of  the  execution,  in  replevin  by  her  for  her  piano, 
slie  was  estopped  from  denying  that  it  belonged  to  the  defend- 
ant in   execution,  and  claiming  it  as   her  own.^     So  where  an 

Amounet  v.  Young,  14  La.  Ann.  175;  Hunt  v.  Coon,  9  Ind.  557;  Hamahan 

Smith   V.    Taylor,    14   La.  Ann.  665;  v.  O  Reilly,  102  ]Mass.  301;  Welch  v. 

liiitch  V.  Ilibliaril,  10  Mv.  146;  Rangely  Bank,  94  111.  191 ;  Dahlman  v.  Foster, 

V.    Spring,   21    Me.    137;  Pickard  v.  55  Wis.   .382;  Hart  v.  Giles,  67  Mo. 

Sears,   6   A.    &  E.    469;   Ilibbard  v.  175. 

Steward.  1  Hilton,  207;  Canal  Co.  v.  '  Moore  v.  Bowman,  47  N.  H.  494  ; 

Lewis,  12  N.  J.  E.  323;  Luret  v.  Kose,  Rigney  v.  hmith,  39  Barb.  3S3. 

20  Tex.  639;  Spears  v.  Walker.  1  How.  =^Colwell  v.  Brower,  75  111.  516. 
616;  Lewis  v.    Clarke,   5  lowu,    II; 


Estoppel  in  Pais.  921 

officer  has  an  execution  iu  liis  hands  against  A.,  and  J.  tells  him 
that  he  has  propertj  in  his  possession  belonging  to  A.,  which 
■u'as  left  with  him  as  a  pledge  and  security,  and  takes  the  officer 
to  where  the  property  is,  and  points  it  out  to  him,  telling  him  it 
is  the  absolute  property  of  A.,  and  that  his  title  is  clear,  and  the 
officer  then  levies  upon  it,  and  takes  it  from  J.'s  possession,  with- 
out any  protest  or  objection,  as  between  himself  and  the  officer, 
waives  his  claim  or  lien  upon  the  property,  and  cannot  maintain 
an  action  of  replevin  against  the  officer  for  the  recovery  of  the 
property.'  So,  where  a  parent  allowed  his  minor  son  to  work 
for  another  at  certain  monthly  wages  to  be  paid  to  the  son.  The 
father,  Avho  lived  near  by,  knew  of  the  agreement,  made  no  objec- 
tion, nor  did  he  notify  the  employer  not  to  pay  the  wages  to  the 
minor,  nor  did  he  demand  the  wages.  After  the  work  had  been 
done,  and  all  the  wages  paid  to  the  son,  the  father  was  held 
estopped  from  claiming  them.'' 

§  793.  Estoppels  must  ordinarily  be  mntnal  and  will  not 
extend  beyond  the  parties  to  the  contract  or  transaction  in  which 
they  arise."  A  declaration  or  admission  made  to  one  man  can 
seldom  be  absolutely  conclusive  in  favor  of  another  '*  but  when 
the  statement  is  meant  to  influence  the  conduct  of  third  parties, 
this  rule  does  not  apply.  The  declaration  of  a  party,  in  order  to 
estop  him,  in  relation  to  his  ownership  of  property,  must  be  made 
to  one  who  has  a  right  to  know  the  relations  of  the  party  to  the 
property  in  question.^  A  statement  made  by  the  owner  of  land 
which  he  is  about  to  sell  in  the  presence  of  the  purchaser  to 
another  person,  is  equivalent  to  a  statement  to  the  purchaser  him- 
self.® An  estoppel  embraces  in  its  conclusive  effect  parties  and 
privies   and  estops    all  who  claim   under  the    person    originally 

>  Hardin  V.  Joice,  21  Kas.  318.  239;   Wright   v.    Hazen,   24  Vt.  143; 

"Smith   V.    Smith,    30    Conn.    Ill;  Beutley  v.   Cleaveland,   22  Ala.   814; 

Boneton  v.  Black,  68  Ind.  269.  Watsou     v.    Hewitt,    45    Tex.     372; 

^  Wood  V.  rennell,  51  Me.  52;   Hill  Simp.sou    v.     Pearson,     31     Ind.     1; 

V.   Epley,   31    Pa.  St.  331;.  Cuttle  v.  Edmundson  v.  Montague,  14  Ala.  370. 

Brockway,  32   Pa.    St.    45;    Louis  v.  ^  Heane  v.  Rogers.  9  Barn.  &  C.  577. 

Castleman,    27   Tex.    407;   Griffin    v.  ^  guiiivan  v.  Park,33  Me.  438;  xillum 

Richardson,  11  Ii-ed.  439;  Massure  v.  '  v.  Perry,  08  Me.  232. 

Noble,  11  111.  531;  Wright  v.  Hazen,  *>  ^^lexander  v.  Beresford,  27  Miss. 

24  Vt.  143,  Cohoes   Co.  v.  Goss,  13  747. 
Barb.  137;  Alexander  v.  Walter,  8  Gill, 


922  The  Law  of  Estoppel. 

barred.  Thus,  the  buyer  of  a  chattel  was  held  to  be  witliin  the 
bar  of  an  estoppel  «nj*^(m  growing  out  of  the  acts  and  declara- 
tions of  the  vendor.'  And  the  rule  is  the  same  in  regard  to  an 
estate  in  land,"  but  as  the  interest  conferred  by  an  estoppel  of 
this  description  is,  where  real  estate  is  involved,  essentially  equit- 
able, subseqent  purchasers  will  not  be  bound  without  notice.  A 
"judgment  creditor  is  generally  subject  to  every  equity  that  would 
have  been  binding  on  the  debtor.^  An  estoppel  can  never  be 
founded  upon  an  omission  to  object  to  the  performance  of  an  act 
which  was  lawful  when  done  by  the  party  doing  it,  or  for  an 
omission  to  deny  an  assertion  which  was  true  when  made.  It  is 
when  a  party  stands  silently  by,  and  sees  an  unwarrantable  act 
done  to  his  property,  or  hears  a  false  and  injurious  declaration 
made  in  relation  to  his  rights,  that  he  is  estopped  from  subse- 
quently questioning  the  act  or  statement  to  the  prejudice  of  an 
innocent  piirty."  No  one  can  be  estopped  by  an  act  that  is  illegal 
and  void,"  and  an  estoppel  can  only  operate  in  favor  of  a  i)arty 
injured  in  a  case  where  there  is  no  provision  of  law  forbidding 
the  party  against  whom  the  estoppel  is  to  operate  from  doing 
the  act  which  is  sought  to  be  carried  out  through  its  operation." 

§  794.  Where  a  declaration  is  so  general  in  its  terms,  or  made 
under  such  circumstances  as  to  indicate  that  it  was  intended  to 
reach  third  persons,  or  the  community  at  large,  the  estoppel  will 
be  extended  far  enough  to  protect  every  one  who  may  have  been 
presumed  to  have  acted  or  been  governed  by  it.'  AVhile  a  bond 
signed  and  sealed  in  blank  may  not  (according  to  some  authori- 
ties) be  valid  between  the  parties,  it  is  binding  when  it  is  in  the 
hands  of  third  parties  after  it  has  been  filled  up  by  the  obligee.* 

'  McCravey    v.    Remson,    19    Ala.  «  R.  R.   Co.    v    Schuyler,  34  N    Y. 

430;   CraiU!  v.  Turner,  67   N.  Y.  467.  30;  .Johnson  v.  Byler,  38  Tex.  606. 

»  Wooley  V.  Edsou,  35  Vt.  214;  Cor-  ^  Hostler  v.  Hays,  3  Cal.  203;  Lewis 

bert  V.  Norcro.ss.  35  N.  H.  99;   Snod-  v.  Carstairs,  6  Whart.  207;  Alexander 

gras.s  V.  Ricketts,  13  Cal.  359;  Shaw  v.  v.    Beresford,   27  Miss.  747;  Bank  v. 

Beebe,  35  Vt.  205;  Wood  v.  McGuiie,  Jerome,  18  Conu.  443;  Bank  v.  Ford, 

15  Ga.  202;  Peters  v.  Jones,  35  Iowa,  27  Conn.  282;  Mitchell  v.  Reed.  4  Cal. 

542;   Thistic  v.  Buford,  50  Mo.  278;  204;  Graff  v.  R.  R.  Co.,  3  Pa.  St.  489; 

Brtine  v.  Riekett,  1  Cin.  (Ohio)   101.  Bank  v.   West,  46  Me.  15:  Quirk  v. 

2  Brace  v.  Marlbourg,  2  P.  Wm.  471.  Tliomas,  6  Mioh.  76;  Concry  v.  Clark, 

*  Corning  v.  Nail  Factory,  39  Barb.  13  La.  Ann.  313;  R.  R.  v.  Lacy,  2  Y. 

311.  &  J.  79. 

<•  Mattox  V.  Hi2;htsue,  39  Ind.  95.  »  Van  Duzer  v.  Howe.  21  jST.  Y.  531; 


Estoppel  Ix^  Pais.  923 

Thus,  a  recital  in  a  deed  that,  a  judgment  given  for  the  price  had 
been  paid,  was  held  to  estop  the  grantor  from  setting  it  up 
against  subsequent  creditors,  avIio  though  not  technically  privies, 
might  have  refrained  from  trusting  the  grantee,  if  the  judgment 
had  still  been  in  force.*  And  an  alley  which  had  been  treated 
for  a  number  of  years  as  the  common  property  of  the  owners  of 
the  adjacent  houses,  cannot  be  closed  by  one  of  them  against  a 
purchaser,  who  may  be  presumed  to  have  purchased  on  the  faith 
of  the  appearance."  If  a  vendor  represents  that  the  use  of  an 
alley  passes  with  the  premises  conveyed,  and  obtains  an  increased 
price  thereby,  he  is  estopped  afterward  to  prevent  the  vendee 
from  using  the  alley,  though  the  deed  does  not  convey  the  right.' 
So,  where  a  party  has  accepted  deeds  recognizing  the  existeoce 
of  the  street  as  a  public  highway  at  the  point  of  improvement, 
according  to  a  city  plat,  he  is  estopped  to  deny  the  same.* 

§  795.  Courts  go  a  great  ways  in  presuming  that  acts  and 
declarations  calculated  to  influence  third  persons  have,  in  fact, 
reached  their  ears,  and  induced  them  to  buy.  Thus,  it  was  held' 
i\\^i  bona  fide  purchasers,  who,  by  the  deceptive  acts  of  acquies- 
cence of  the  wife  in  the  will  of  her  husband,  might  have  had 
reasons  for  believing  that  its  provisions  would  not  be  disturbed, 
would  estoj:*  her,  though  it  cannot  be  shown  that  the  purchasers 
acted  on  that  belief.  This  extension  of  equitable  estoppels  is 
peculiarly  applicable  to  those  statements  which  like  letters  of 
credit  or  the  prospectus  of  an  insurance  company,  are  addressed 
to  all  the  world,  and  where  the  defendants  had  advertised  that 
they  would  not  refuse  the  payment  of  a  loss  on  any  ground  short 
of  fraud,  they  were  held  estopped  from  taking  advantage  of  a 
failure  to  comply  with  the  requisitions  of  the  policy  which  was 
not  actually  fraudulent.'  The  doctrine  in  this  country  has  not 
been  in  strict  accord  with  the  principles  announced  in  Wheelton 

Swan,  in  re,  7  C.  B.  N.  S.  400;  U.  S.  ^  Kirkpatrick  v.  Brown,  59  Ga.  450. 

V.  Nelson,  2  Brock.  64;  Byers  v.  Mc-  *  Grimm  v.  Shickle,  4  Mo.  App.  585. 

Laualiau.  6   G.  &  J.  250;  McKee  v.  ^  Ackla  v.  Ackla"  6  Pa.  St.  238. 

Hicks,  2  Dev.  379;  Ayers  v.  Harness,  ^  JN'ew,  »fec.  Co.  v.  jMuggridge,  7  Jur. 

1  Ohio,   ;i68;  Kortright  v.   Bank,   20  N.  S.  132;  Wood  v.  Dwarris,  11  Excliq. 

Wend.  91.                   "  493;  Gratf  v.   R.  11.  Co.,  31  Pa.  St. 

'  Waters'  Appeal,  35  Pa.  St.  523.  489;  Tunnell  v.  Sheldon,  6  B.  «&  C. 

'  Lewis  V.  Carstairs,  6  Wharton,  193.  341. 


924  The  Law  of  Estoppel. 

V.  Hardest}',  Avherc  it  was  held  that  where  the  defendants  circu- 
lated a  prospectus  whereby  thej'  undertook  that  their  policy 
should  be  unquestionable  except  ou  the  ground  of  fi-aud,  and  the 
plaintiff  was  induced  to  take  a  policy  on  the  faith  of  such  pros- 
pectus ;  the  jury  found  a  v^erdict  for  the  plaintiff  and  it  was 
sustained.  In  another  case/  Coleridge,  J.,  says  :  "  I  ain  of  opin- 
ion that  if  an  advertisement  is  put  out  to  induce  parties  to  enter 
into  a  certain  contract,  and  an  individual  does  afterwards  enter 
into  such  contract,  and  then  comes  into  court  and  complains  of 
misrepresentation,  it  is  no  part  of  his  case  to  show  that  he  was 
cognizant  of  the  advertisement  \  jprhna  facie  it  will  be  taken  that 
he  was  iniluenced  by  it."  In  another  case,''  some  evidence  was 
given  from  which  it  might  be  inferred  that  the  plaintiff  saw  the 
advertisement,  it  was  held  that  the  jury  might  well  iind  that  it 
was  a  material  inducement  for  him  to  pay  his  money. 

§  796.  In  this  country  the  decisions  have  been  cofiflicting, 
many  of  them  establishing  the  doctrine  that  matters  preceding 
or  contemporaneous  with  the  issuing  of  the  policy  are  not  ad- 
mitted to  establish  a  waiver  of  its  conditions.  In  the  later  and 
moi'e  carefully  considered  cases  of  which  a  vast  number  of  them 
will  be  cited  in  the  chapter  on  corporations,  it  has  been  well  set- 
tled that  parol  evidence  of  the  conduct  of  the  agent  of  the 
insurer,  before  or  at  the  date  of  the  policy  is  held  admissible  to 
establish  a  waiver  of  its  condition.  Judge  Dillon  decided  that 
a  circular  addressed  by  a  Life  Insurance  Company  to  its  share- 
holders, M'hich  stated  that  it  wouKl  nut  insist  upon  forfeiture  of 
its  policies  because  of  non-payment  of  interest  thereon  was  a 
Avaiver  of  the  right  to  insist  on  a  forfeiture  for  non-payment  of 
interest,  which  was  available  to  policy  holders  in  a  court  of  law, 
and  that  there  Avas  no  necessity  for  equity  to  interjjose  to  enjoin 
the  company  from  setting  up  the  forfeiture  by  way  of  defense 
in  an  action  at  law.  Assumino^  t])e  iilaintiff  to  be  riii-ht  in  liis 
contention  that  this  was  a  waiver  of  the  right  to  forfeit  this  pol- 
icy, it  is  a  defense  available  i)y  ix'plication  in  a  law  action  with- 
out any  question.  We  enforce  the  same  principles  here  every 
day  where  something  happens  after  the  execution   of  the   policy 

'  Watson   V.   Charlemout,  2  A.   &         ^  Wontlier  v.  Sliarp,  4  C.  B.  408. 
Ell.  863. 


Estoppel  in  Pais.  925 

which  is  set  up  as  a  waiver  by,  as  an  estopj3el  against  the  com- 
pany. The  company  has  waived  the  right  to  insist  upon  this 
forfeiture.  And  it  has  been  lield  in  England  that  where  the 
prospectus  contains  statements,  that  the  policies  should  be  indis- 
putable and  unquestionable,  it  was  held  that  the  prospectus, 
though  issued  and  circulated  by  the  company  prior  to  the  issu- 
ance of  the  policy  was  admissible  in  evidence,  and  formed  a  good 
equitable  answer  by  the  plaintiff  to  the  companies  claim  that  the 
policy  was  void  by  reason  of  misrepresentation  ;  and  the  plaintiff 
recovered  at  law  on  the  policies,  but  upon  equitable  principles.' 
Such  prospectuses  or  advertisements  are  in  effect  made  to  every 
one  interested  in  the  subject  matter  to  wliich  it  relates,  and  the 
party  issuing  it  should  be  held  to  the  same  measure  or  accounta- 
bility as  if  lie  had  spoken  or  written  to  the  persons  he  wished 
to  deceive." 

§  797.  Tlicre  can  be  no  estoppel  in  equity  or  on  any  principles 
of  equity  unless  the  person  who  asks  relief  from  the  rigor  of  the 
law  is  a  purchaser  in  the  large  and  liberal  sense  in  which  the 
term  includes  all  wlio  have  given  value,  or  changed  their  position 
for  the  worse  in  reliance  on  the  acts  or  declarations  of  others.^ 
A  donee  or  devisee  cannot,  therefore,  enforce  an  estoppel  which 
would  not  have  been  valid  iri  favor  of  the  donor  or  devisor,  and 
the  same  principle  applies  to  every  one  who  takes  a  conveyance 
or  assignment  without  giving  anything  in  return,  and  will,  there- 
fore, be  in  no  worse  condition  if  the  title  which  he  has  fails  than 
he  was  before."* 

§  798.  Estoppels  are  sti'ictly  construed,  and  are  not  allowed  as 
instruments  of  fraud,  but  only  to  prevent  injustice,  and  are  well 
founded  when  confined  to  the  legitimate  purpose  of  preventing 

'  Wood    V.    Dwarris,   11   Exc.  493;  Bedford  v.  Bagsliaw,  4  H.  &  N.  4o8; 

Wbeelton  V.  Hardisty,  8  El.  &  B.  332;  Gerhard   v.    Bates,    2   E.    «&  B.    476; 

Watsoa  V.  €barlemoat,  2  A.  &  Ell.  Calhoun    v.    Richardson,    28    Conn. 

803;  Wouther  v.  Sharp,  4  C.  B.  408;  210;    Seymour  v.  Bashaw,   18  C.    B. 

R'y  Co.   V.  Kisch,  L.  R.  2  H.  L.  99;  873. 

Steele  v.   Ins.   Co.,  3  JIo.  Apo.  207;  ^  Weaver  v.  Lynch,  25  Pa.  St.  449 ; 

Geib  V.  Ins.  Co.,  1  Dill.  443;  Robmson  Goodhue    v.    Seannell,   8    Cal.    827; 

V.   Ins.   Co.,   oral    opinion   of   Judge  Thompson    v.     Thompson,    9     Ind. 

Dillon  unreported.                                ,  323;  East  v.  Dolhite,  72  N.  C.  562. 

2  Wontber  v.  Sharp,  4  C.  B.  40S;  *  Weaver  v.  Lynch,  25  Pa.  St.  449. 


926  The  Law  of  Estoppel. 

one  man  from  being  injnred  hy  the  aets  or  misrepresentations  of 
another. 

§  799.  There  can  be  no  estoppel  where  the  act  or  representa- 
tion is  made  or  done  afterwards.  Thns,  in  an  action  of  replevin 
brought  for  a  mare,  levied  on  by  the  defendant  under  an  execu- 
tion against  a  third  person,  the  plaintiff  was  permitted  to  show 
that  the  third  ])erson  had  no  title,  although  he  had  declared  some 
months  previously  that  the  mare  was  the  common  property  of 
both.  The  court  held  that  if  this  statement  had  been  made  at 
the  time  of  the  levy  it  would  have  been  conclusive,  but  that  as  it 
occurred  in  the  course  of  another  transaction  it  was  to  be  regarded 
in  the  light  of  an  ordinary  admission,  and  was  consequently  open 
to  explanation  and  contradiction,  whatever  the  loss  on  one  side 
and  the  degree  of  moral  wrong  on  the  other  may  be,  there  will  be 
no  estoppel  unless  the  loss  is  the  direct  and  natural  result  of  the 
wrong,'  nor  unless  it  is  clearly  apparent  that  the  injurious  influ- 
ence exercised  by  the  acts  and  declarations  which  constitute  the 
estoppel,  if  not  intended  might  have  been  foreseen.-  A  n)un  will 
not  be  bound  by  an  answer  to  a  question  asked,  without  disclosing 
the  object,  and  which  he  may  reasonably  deem  frivolous  or 
impertinent,  nor  unless  he  has  notice  that  the  person  l^y  whom  it 
is  put  means  to  shape  his  course  by  the  answer.  Thus  it  was  held, 
that  a  representation  b}'  the  defendant  in  an  execution,  that  the 
goods  seized  by  the  oflUcer  were  the  property  of  his  brother,  did 
not  estop  him  from  proving  that  they  were  really  his  own, 
although  the  sheriff  went  on  to  sell  them,  under  a  suit  against  the 
brother,  of  the  existence  of  which  the  defendant  was  ignorant, 
because  the  circumstances  of  the  case,  taken  as  a  whole,  were 
such  as  to  shov.'  that  the  representation  was  not  meant  to  bring 
about  the  sale;  then  the  sale  was  not  the  result  of  the  representa- 
tion.*    So  a   false  statement  to  a  carrier  as   to  value  of  hoises  in 

'  Taylor  V.  Zcpp.  14  Mo.  483;  Alex-  bridge    v.    Littlefield,   6    Tonn     kMO: 

ander  V.  Wilder,  8  Gill,  239.  Jone.s  v.  Cowles,  26   Ala    612;  Wliito 

Mlenley  V.    Henley,    16    Ala.    91;  v.  Langdon,  30  Vt.  599:  Taylor  v.  Ely. 

Morton  v.  Hogdon,  23   Me.  137;  Otis  25   Conn.    250;    Love    v.    Barhei,    17 

V.  Sill,  8  Barb.  103;  Ryersv.  Farweil,  Tex.    312;    Cady  v.    Dyer,  20   Conn. 

9  Barb  015;  Carlwriglit   v.  Gardner,  563;  Carter   v.   Darby,    16    -lia.   696. 

5  Cusb.  273;  Pond  v.  Iline,  21    C(mn.  "  Freeman  v.  Cook,    2  Exchq.  653; 

519;  Watkins  V.  Peck,  13   N.  H.  300;  Howard   v.    Hudson,    2   E.    &   B.    1; 

Pound  V.  Richards,  21  Ala.  424;  Cam-  ^Vethered  v.  Ins.  Co.  49  Me.  20;  Cox 


Estoppel  in  Pais. 


927 


order  to  induce  carrying  tlieiii  at  a  lower  rate,  estops  him  from 
proving  a  greater  value  in  cases  of  loss.  A  declaration  to  one 
man  can  rarely  operate  as  an  estoppel  in  favor  of  anotlier,  unless 
lie  is  a  privy  in  estate  with  the  tirst,  not  only  because  what  is 
learned  merely  through  report  seldom  has  much  iniiucnce  on  con- 
duct, but  because  it  would  be  unjust  in  most  cases  to  carry  the 
responsibility  arising  from  a  statement  further  than  the  person  to 
whom  it  is  addressed,  or  render  the  person  answerable  for  every 
act  that  may  be  built  on  it  by  strangers,"  Thus  a  letter  written  to 
an  assignee  of  a  bond,  acknowledging  that  it  was  justly  due,  was. 
not  held  to  be  an  estoppel  in  suit  brought  for  the  benefit  of  a 
third  person,  by  whom  the  bond  was  subsequently  purchased, 
because  there  was  no  evidence  that  the  purchaser  had  seen  the 
letter  or  was  influenced  by  it  in  purchasing  the  bond/ 

§  800.  ]S^o  man  can  adopt  that  part  of  a  transaction  which  is 
favorable  to  him,  and  reject  the  rest  to  the  injury  of  those  from 
whom  he  derived  the  benefit.^     This  application  of  the  law  of 


V.  Cannon,  4  Bing.  N.  C.  453;  Foster 
V.  Asso.  3  E.  &  B.  48:  Guruey  v. 
Evans,  3  H.  &  K  122;  Dunstan  v. 
Patterson,  2  C.  B.  N.  S.  49;  McCauce 
V.  R'y  Co..  7  H.  &  N.  447;  Keating 
V.  Orme,  77  Pa.  St.  89;  Zuchtman  v. 
Roberts,  109  Mass.  58;  Strauss  v.  Min- 
zesheimer.  78111.  492;  State  v.  Rugby, 
52  Mo.  96;  Audenried  v.  Bettely.  5 
Allen,  882;  Plumer  v.  Lord,  9  Allen, 
455;  Garlingliouse  v.  Wliitwell,  51 
Burb.  208;  Richards  v.  Browne,  3 
Bing.  N.  C.  499;  Jewsbury  v.  Mum- 
ery,  L  R.  8  C.  P  56,  Ry  Co.  v 
Woodcock,  7  M.  &  W.  574  ;  McFar- 
lauev.  Giannacopulo,  3  IL  &  X.  800; 
Cave  V.  Mills,  7  H.  &  N.  918;  Miles 
v.  Furber,  L.  R.  8  Q.  B.  77;  Clierry 
V.  Bank,  L.  R.  3  P.  C.  274. 

'  Behm  v.  Kennedy,  7  C.  B.  N.  S. 
260;  Stroble  v.  Smith,  8  Watts,  380: 
Miller  v.  Cresson,  5  W.  A:  S.  284; 
Holfmire  v.  Holcomb,  17  Kas.  378; 
Lawrence  v.  Brown,  5  N.  Y.  894; 
Harbin  v.  Leei,  (5  Ala.  899;  Car.lin  v. 
Grote,  ,4  E.  D.    Suiitli,    296;  Wilkins 


V.  Anderson,  11  Pa.  St.  399;  Penuall 
V.  Harmau,  7  Barb.  644;  Alexander 
Y.  Walter,  8  Gill,  289;  Ilearne  v.  Rog- 
ers, 9  B.  &  C.  577;  Starr  v.  Goutell, 
17  Md.  341. 

^  Eldred  v.  Ilazlitt,  33  Pa.  St.  307; 
Bank  v.  Manning,  37  Riwa,  610; 
Murray  v.  Sells,  58  Ga.  257;  Whedou 
V.  Champlin,  59  Barb.  61. 

*  Males  V.  Lowenstcin,  10  Ohio  St. 
512;  Reynolds  v.  Roebuck,  37  Ala. 
408;  Bennett  v.  Wade,  1  Dick.  84; 
Browsoii  V.  Wiman,  10  Barb.  406; 
]\lickle  V.  Miles,  1  Grant  Cas.  320; 
Stevens  v.  Hyde,  32  Barb.  171 ;  Bel- 
lamy y.  Sabine,  2  Ph.  450;  Hanson  v. 
Keating,  4  Hare,  1 ;  Bank  v.  Groves, 
12  How.  51;  R.  R.  Co.  v.  Magnay,  25 
Beav.  594;  Kinney  v.  Kitrnan,  2 
La«!s.  492;  Jenkins  v.  Simpson,  14 
Me.  304;  Hancock  v.  Why  bark,  66 
Mo.  672:  Voorhees  v.  Earl,  2  Hill, 
288;  Fay  V.  Oliver,  20  Vl.  118;  Jen- 
nings V.  Gaze,  13-' III.  610;  Mason  v. 
Bovet,  1  Denio,  74;  Clarkson  v.  Mit- 
chell, 3  E.  D.  Smith,  269;    Jewett  v 


928  The  Law  of  Estoppel. 

equitable  estoppel  admits  of  less  mistake  or  iiiisapprehension  than 
any  other,  and  is  a  favorable  doctrine  with  all  tribunals  whenever 
the  circurastances  are  such  as  to  admit  of  its  application.  There- 
fore, where  those  who  are  entitled  to  avoid  a  sale,  adopt  and 
ratify  it,  equity  will  estop  them  from  afterwards  setting  it  aside 
for  reasons  which  arc  too  plain  for  statement.'  Where  a  sale  of 
land  is  made  no  one  can  be  permitted  to  receive  both  the  money 
and  the  land.  Thus,  if  cestuis  que  trustent  have  given  releases 
and  have  taken  theii-  proportions  of  the  purchase  money  paid  for 
the  estate,  did  so  advisedly,  with  full  knowledge  of  the  facts, 
when  free  from  all  constraint  resulting  from  their  relation  to  the 
trustee,  and  if  they  were  at  the  time  not  subject  to  any  disability, 
then  they  must  be  deemed  to  have  consented  to  the  alienation 
and  to  liave  confirmed  it,  and  can  no  longer  have  any  right  to 
complain  of  or  impeach  it  as  a  breach  of  trust.  They  certainly 
cannot  be  entitled  to  have  both  the  estate  and  the  purchase  money 
into  which  it  was  converted.^  This  principle  is  applicable  even 
if  the  vendor  possessed  no  title  at  the  time  of  the  sale,  the  estoppel 
would  operate  upon  a  title  subsequently  acquired, 

§  801.  Equitable  estoppels  of  this  character  applj^  to  infants  as 
well  as  adults,  to  insolvent  trustees  and  guardians,  as  well  as  to 
persons  acting  for  themselves,  and  have  place  as  well  where  the 
proceeds  arise  from  a  sale  by  authority  of  law,  as  where  they 
spring  from  the  act  of  the  party.'  The  receipt  of  the  purchase 
money  is  an  affirmance  of  the  sale  wiiether  it  were  void  or  only 
voidable.''     Thus,  where  a  husband  and  wife  w'ere  seized  of  an 

Petit,  4  Mich.  508;  Kimbiili  v.  Cim-  man,  18  Pa.  St.  343;  Winn  v.  Brown, 

ningliam,  4  Mass.    504,    McGuive   v.  14  La.  An.  642;  Porter  v.    Curry,  50 

Callaliau,  10  Ind.  128;  Blackensloss  v.  111.  319;  Smith  v.  Warden,  19  Pa.  St. 

Slahler,  33  Pa.  St.    251,  Meysenburg  424,    Reed    v.    Leups,  38    Wis.    302; 

V.  Schliefer,  48  Mo'.  426;  See  Post,  Ch.  Kelly  v.  Stanberry,  13  Ohio.  408;  Em- 

XVII.  mous  V.  Milwaukee,    32    Wis.    434; 

'  Johnson  v.  Fritz,   44  Pa.  St.  449;  Southard   v.    Perry,     21    Iowa.    488; 

Pickens  v.  Yarboroiigh,  30  Ala.  408;  Iloffmire   v.    Holcomb,  17  Kas.    378; 

Bocock    V.    Pavey,    8    Ohio   S.    270;  Swausou  v.  Tarkinglon,  7  Ileisk.  612; 

Stale  V.  Stanly,  14  Ind.  409,  Morris  v.  Hamilton  v.  Bank,  22  Iowa,  303;  Wil- 

Stewart,  14  Ind.  334;  Merritlv.  llornc,  lianis  v.  Gideon,  7  Heisk.   07;  Bell  v. 

5   Ohio,   307;  Tuhler   v.    Wiseman,  2  Craig,  52  Ala.  215. 

Ohio  St.  207;  Buckingham  v.  llanua,  "  Post  v.  Post,  13  R.  1.  495. 

2  Ohio   St.    551 ;  Stroble  v.  Smith,  8  »  Dalton    v.    Rust,    22     Tex.    133. 

Walts,  280;  Commonwealth  v.   Shu-  -Tavid  v. Roberts,  50  N.T. 232;  Bod- 


Estoppel  in  Pais.  929 

estate  by  entireties,  the  husband,  by  will,  directed  the  land  to  be 
sold,  and  the  proceeds  divided  amongst  his  children,  and  died 
leaving  a  wife  and  a  number  of  children  ;  having  named  no  one 
to  make  the  sale,  the  land  was  sold  under  an  order  of  court,  and 
bought  by  two  of  the  children,  at  the  request  of  the  widow,  who 
received  her  share  of  the  proceeds,  in  accordance  with  the  will. 
After  her  death,  in  ejectment  for  the  land  by  the  heirs,  lidd^  they 
were  estopped.  If  she  were  innocent  of  her  rights,  she  would  be 
estopped  upon  the  principle  that,  where  one  of  two  innocent  per- 
sons must  suffer,  it  shall  be  he  who  caused  the  injury. 

§  802.  One  who  encourages  another  to  purchase  land,  and 
spend  money  on  it,  cannot  set  up  a  better  title  in  himself  to 
defeat  the  purchaser.  Silence  alone  will  not  postpone  unless  it 
is  a  fraud,  but  positive  encouragement  without  fraudulent  intent 
will  bar  the  assertion  of  a  right.  It  makes  no  difference,  if  the 
defect  in  the  title  might  have  been  discovered  by  the  purchaser, 
he  has  been  put  off  his  guard,  and  a  party  cannot  have  the  price 
of  the  land,  and  the  land  itself.  The  acceptance  by  the  widow 
and  heirs,  was  an  afffrmatiou  of  the  sale,  whether  it  was  void  or 
voidable.'  And  where  a  court  decrees  the  sale  of  an  adult's  lands, 
and  he  assents  to  it,  he  is  estopped.^  It  makes  no  ditference  in 
the  application  of  this  principle,  whether  the  proceedings  under 
which  the  sale  occurs  are  voidaljle  or  wholly  void,  in  consequence 
of  the  want  of  jurisdiction.^  The  design  and  utilitj'  of  the  estop- 
pel is  to  prevent  the  gross  injnstice  that  must  necessarily  arise, 
where  a  man  accepts  all  the  benefits  from  an  act  that  it  is  capable 
of  conferring,  and  then  sets  it  aside  to  the  injury  of  third  persons. 

§  803.  A  defendant  in  an  execution  is  estopped  from  ques- 
tioning the  validity  of  the  writ  or  judgment  by  allowing  the  pur- 
chaser to  make  payments  to  the  sheriff  in  satisfaction  of  the 
judgment  debt."     A  defendant  who  has  notice  that  his  property 

inc  V.  Killecn,  53   JST.    Y.    98;  Regina  -  Lange's   Appeal,  53  Pa.    St.  38:3; 

V.  Sliropshiie,  &c.  Co.,  L.  R.  8  Q.  B.  Thomas^ v.  Poole,  19  S.  C.  323;  O'Dcll 

420;  Waldion  v.  Sloper,  1  Drew,  193;  v.  Rogers,  44  Wis.  126. 

Rice  V.  Rice,  2   Drew,  78;  R.    R.  Co.  =•  Spragg  y.    Schriever,   25   Pa.  St. 

V.  Chamberlain,  84  111.  333.  282;  Menitt  v.  Houe,  5  Objo  St.  307; 

'  Ma!)le   v.  Kiissart,  53  Pa.  St.  348;  Tlioma.s  v.  Poole,  19  S.  C.  323. 

Stone   V.    Britton,    22   Ala.    543;  Me-  «  Mitchell  v.  FreecUy,  10  Pa.  St.  193; 

couch   V.    Lougherj--,    12   Phila.    416;  Ciowell  v.   Meconky,   5  Pa.   St.  168; 
Place,  in  re,  1  Redf.  276. 
Vol.  I. -59 


930  The  Law  of  Estoppel. 

is  about  to  be  sold  hy  the  officers  of  the  law  for  tlie  payment  of 
his  debts,  and  who  makes  no  objection  until  an  innocent  pur- 
chaser has  paid  the  purchase  money  and  received  a  deed  duly 
acknowledged,  is  estopixjd  from  objecting  afterwards.  Even  if 
the  judgment  on  which  it  was  sold  was  paid,  the  payment  cannot 
be  set  up  against  such  a  purchaser.'  So  a  creditor  who  levies 
on  an  equity  of  redemption,  and  has  the  amount  of  the  incum- 
brance allowed  in  his  favor  in  the  appraisal  of  the  interest  set  off 
to  him,  can  not  set  up  the  invalidity  of  the  incumbrance.''^  Where 
parties  have  admitted  and  acted  ujx)n  instruments,  they  are  estop- 
ped from  denying  them,  unless  the  admissions  were  made  by 
mistake  or  procured  by  fraud.'  Where  the  grantor  of  land  passed 
it  by  deed  to  A.,  and  after  the  death  of  the  grantor  his  heirs 
recognized  the  deed  and  contirmed  it  upon  the  death  of  the 
grantee  the  property  descends  to  his  heirs.  One  who  is  cognizant 
of  all  these  transmissions  and  assented  to  them,  cannot  go  behijid 
these  links  of  title  to  dispute  them.  A  party  ought  not  to  be 
heard  to  contradict  and  falsify  his  own  solemn  admissions  and 
declarations  made  before  judicial  tribunals.  When  an  ancestor 
has  acquiesced  in  acts  so  as  to  conclude  her,  her  heirs  are  likewise 
concluded.* 

§  804.  Where  money  is  borrowed  to  make  a  purchase,  and 
title  taken  in  the  name  of  the  lender  of  the  money  to  secure  his 
advances,  he  is  estopped  from  pleading  illegality  of  the  purchase, 
so  as  to  retain  the  property.^  So  where  one,  who  has  purchased 
at  a  sale  of  land,  promised  the  owner  to  re-convey  to  him  on  being 
repaid,  at  any  time  when  the  latter  should  require,  averring  that 
he  had  purchased  merely  to  save  them  for  the  family,  such  pur- 
chaser is  estopped  from  claiming  the  lands.  This  doctrine  applies 
in  all  cases  where  a  party  attempts,  on  the  faith  of  benehting 
another,  to  obtain  an  undue  advantage  by  lulling  such  party  into 

Austin   V.    Loriiig,    63   Mo.  19,  Van-  »  Anthony  v.  Ray,  28  Mo.  109;  Fiir- 

ness  V.  Vauness,  1  N.  J.  E.  248.  Icy  v.  Farley,  14  Ind.  391;  BuUiott  v. 

»  Dcau  V.    Connel}-,  G  Pa.   St.  239;  Robinson,  13  La.  Ann.  529. 

Slagel  V.  Murdock.GiJ  Mo.  022;  Holmes  *  Porter  v.  Hill,  30  Tex.  529. 

V.  Steele,  28   N.  J.  E.  173;  Crawford  ^  McMicken  v.  Pernu,  18  How,  507; 

V.  Ginn,  35   Iowa,   543;  Hereford  v.  Sharp   v.  'laylor,   2   Phill.    Ch.    801; 

Bank,  53  Mo.  330;  City  v.  VViliey,  35  Tenant   v.    Eliiolt,   1  B.  &  P.  3;  Mc- 

Iowa,  323.  BliLir  v.  Gibbs,  17  How.  232. 

'■'  Canal   Co.  v.    Bouneil,   40   Conn. 


Estoppel  in  Pais.  931 

a  state  of  quiescence  ;  and  there  are  no  more  forcible  instances  of 
it  than  in  those  cases  where  a  party  prevents  competition  at  a 
judicial  sale,  by  representing  that  he  is  purchasing  for  the  bcnelit 
of  the  debtor,  or  that  he  will  allow  him  to  redeem  under  favorable 
circumstances,  where  the  right  of  redemption  has  expired  at  the 
time  of  the  sale.  The  principle  which  controls  such  transactions 
as  these,  is,  that  wherever  the  relation  of  debtor  and  creditor 
exists,  and  real  estate  is  either  conveyed  by  the  debtor  himself,  or 
by  him  procured  to  be  conveyed,  or  by  previous  agreement  with 
him  bid  off  by  the  creditor  or  any  one  apparently  acting  in  the 
interest  of  the  debtor,  at  a  judicial  or  other  public  sale,  under  an 
agreement  to  hold  the  same  as  security  for  an  indebtedness,  the 
relation  of  mortgagor  and  mortgagee  is  created,  and  the  agree- 
ment, although  in  parol  will  be  carried  out  and  enforced  by  all 
courts.  Such  a  parol  agreement  is  not  within  the  statute  of  frauds, 
as  it  would  be  a  fraud  if  it  were  not  sustained.'  So,  where  A. 
gives  his  note  to  B.  for  property  bought  of  C,  he  is  estopped 
from  setting  up  as  a  defense  to  a  suit  on  the  note  that  the  note 
really  belongs  to  C,  and  is  fraudulent  as  against  the  latter's  cred- 
itors.^ Where  a  party  received  money  of  a  person  legally 
intrusted  with  it  and  interested  in  it,  and  contracted  to  deposit  it 
to  the  credit  of  such  person^  he  is  estopped,  in  a  suit  for  such 
recovery,  from  setting  up  as  a  defense  the  rights  of  some  third 
person  with  whom  he  had  no  contract.^  Wliere  a  party  is  bound 
to  pay  a  sum  of  money  u])on  the  happening  of  a  particular  event, 
his  preventing  the  l.'appening  of  that  event  operates  as  an  estop- 

'  Rogers  V.  Johnson,  70  Pa.  St.  224;  Appeal,  66  Pa.   St.   237;  Danzeiscu's 

Dikeman    v.    Norrie,     36     Cal.     94;  Appeal,    73   Pa.    St.    65;    Stewart  v. 

Shrader    v.    Banker,    65    Barb.    608;  Brown,  2  S.  &  R.  461;  Brown  v.  Dy- 

Sheriff  v.  Neal,  6  Watts,  540;  Boyn-  singer,  1   Rawle,  413;   McKennan  v. 

ton  V.  Houster,  73  Pa.  St.  453;  Alorey  Puey,  6  Watts,  137;  Seylar  v.  Carson, 

V.  Herrick,  18  Pa.  St.  128;  Plumer  v.  69  Pa.   St.   81;  Kullum  v.    Smith,  33 

Reed,  38  Pa.  St.  46;  Cook  V.  Cook,  69  Pa.    St.    158;    Harris   v.    Connor,    10 

Pa.  St.  44;  Hoffman  v.   Strohecker,  7  Watts,  313;  and  see  Herman  Real  Es- 

Watts,    86;     Gilbert    v.    Hoffman,   2  tate,  Mort's  Vol.   1,  §§   161,    162  et. 

Watts,  67;  SmuU  v.  Jones,  1  W.  &  S.  seq.,  and  Herman  on  Executions,  § 

138;  Jackson  v.  Somerville,  18  Pa.  St.  346. 

369;  Martin  v.   Gernaudt,  19  Pa.  St.  '^  Stevens  v.  Songer,  14  Ind.  342. 

124;  Beegle  v.  Wentz,  55  Pa.  St.  369;  ^  Sinclair  v.  Murphy,  14  Mich.  392; 

Heath's  Appeal,  100 Pa.  St.  1;  Sweetz-  LarahcitGon  v  Van  Boskerck,  4 Hun, 

er's  Appeal,  71  Pa.  St.  264:  Seclirisfs  628. 


032  The   Law   of   Estoppel. 

pel.'  An  iigreemeiit  to  cancel  and  release  mntnal  claims,  or  dis- 
cuntinuc  mutual  suits,  is  a  mutual  accord  and  satisfaction,  and 
either  party  may  rely  on  it  as  an  estoppel  against  the  prosecution 
of  the  suit  or  claim  by  the  other.  Every  person  is  considered  to 
be  acquainted  with  the  law,  both  civil  and  criminal,  and  no  one 
can,  therefore,  complain  of  the  misrepresentations  of  another 
respecting  it."  Ignorance  of  the  law,  with  knowledge  of  the  fact, 
is  no  defense  ;  ignorance  of  ones  legal  rights  does  not  take  the  case 
out  of  the  rule,  when  the  circumstances  would  otherwise  create  an 
equitable  bar  to  the  legal  title.  A  party's  ignorance  of  the  truth 
of  a  representation  wdll  not  prevent  an  estoppel,  if  his  ignorance 
is*  the  result  of  gross  negligence.'  A  judgment  debtor  who  has 
mingled  with  goods  levied  on  by  the  sheriff,  other  goods  of  the 
same  description,  and  refuses  to  designate  them  to  the  slieriff, 
will  be  esto])ped  from  a  recovery  against  the  sherill  for  seizing 
those  with  the  rest.* . 

§  805.  The  declarations  on  the  part  of  an  inventor  that  he  did 
not  intend  to  take  out  a  patent,  but  to  let  the  public  have  his 
invention,  -will  estop  such  party,  or  any  one  holding  under  him, 
from  asserting  his  right  against  a  jDcrson  acting  on  the  faith  of 
his  representations.^  Where  one  has  advertised  a  patented  article 
as  one  of  the  most  useful  of  inventions,  and  one  which  has  super- 
seded all  similar  articles,  and  has  also  sold  such  articles  for  use, 
such  person  is  estopped,  in  an  action  ngainst  him  for  an  infringe- 
ment of  the  patent,  from  denying  the  utility  of  the  invention.' 
An  inventor  can  have  but  one  single  valid  patent  for  his  inven- 
tion. The  iirst  he  obtains,  while  it  is  unrepealed,  is  an  estoppel 
to  an}-  future  patent  for  the  same  invention.''     A  grant  of  a  sub- 

1  Bleekcr  v.    Bond,  3  Wash.  C.  C.  "  Roth  v.  Wells,  29  N.  Y.  471;  Diin- 

529;  Cape  Fear  Co.  V.  Wilcox,  7  Jones  lop  v.  Patterson,  5  Cow.  243;  Dows 

L.  481;  Parker  Co.  v.  O'lleni,  8  Md.  v.  Moorewood,  10  Barb.  183;  Wendell 

197.  V.  Van  Rensselaer,  1  Johns.  Ch.  144; 

•^  Piatt  V.  Scott,  6  Blackford,  389.  Smith  v.  Hill,  22  Barb.  656;  Hart  v. 

3  Svveezey  v.  Collins,  40  Iowa,  540;  Ten  Eyck,  2  Johns.  Ch.  62. 

St.  Louis  V.  Barker,  6  John.  Ch.  16G;  *  Pitt   v.   Hall,  2  Blatchf.  229;  Mc- 

Dyer  v.  Dyer,  2  Ch.  Cas.  108;  Ilobbs  Corniick  v.  Seymour,  2  Blatcli.  240. 

V.  Norton,   1  Veru.   136;  Ilunsden  v.  «  Stanley  v.    Whipple,    2  McLean, 

Cheyney,    3  Vern.    150;   Teasdale   v.  35. 

Tea.sdale,  Select  Cas.   Ch.  59;  Savage  '  Odiorne  v.   Amesburg  Factory,  3 

V.  Foster,  9  3Id.  35;  Wendell  v.  Van  Mason,  28. 
Rensselaer,  1  Johns.  Ch.  354. 


Estoppel  iisr  Pais.  9-Vd 

sequent  patent  for  an  invention,  is  an  estoppel  to  the  patentee  to 
set  up  any  prior  grant  for  the  same  invention,  which  is  incon- 
sistent with  the  terms  of  the  last  grant/  Altliongh  a  patent  may 
not  be  valid  as  between  the  owners  and  the  general  public,  yet  if 
the  owner  or  patentee  lias  sold  and  conveyed  it,  he  is  estopped  by 
his  implied  warranty  from  asserting  that  it  is  invalid.  The  prin- 
ciple that  every  vendor  of  personal  property  impliedly  warrants 
that  he  has  title  to  and  right  to  sell  what  he  assumes  to  sell, 
which  in  effect  is  embodied  in  his  undertaking  to  selP  applies  to 
a  patent  right,  for  wdioever  assumes  to  sell  the  patent  assumes  to 
sell  that  property,  and  assumes  that  he  had  it  to  sell.  After  sell- 
ing a  patent  right  it  would  be  unjust  to  allow  the  vendor  to  say 
that  he  neither  had  the  patent,  nor  sold  it,  nor  can  he  be  allowed 
to  derogate  from  his  own  grant  by  alleging  that  no  title  passed.' 

§  806.  Where  parties  to  an  executory  contract  agree  upon  a 
third  person  to  determine  w^hether  work  done,  goods  sold,  or  that 
such  third  person's  certificate  should  be  a  pre-requisite  to  payment 
being  made  ;  the  decision  of  the  latter  is  in  the  nature  of  an 
award,  and  is  conclusive  upon  the  parties."  Thus,  where  a  build- 
ing contract  provided  that  payments  should  be  made  on  the  cer- 
tificate of  the  architect,  who  is  required  by  the  contract,  among 
other  things,  to  certify  tJiat  all  the  work  of  the  parties  employed 
by  the  contractor,  had  been  paid  ;  his  certificate  was  conclusive  of 
the  rights  of  all  parties  concerned,  unless  it  can  be  shown  that  it 
was  obtained  by  fraud  or  collusion.^  And  it  is  held,  that  such 
third  person  cannot  effect  its  conclusiveness,  after  he  makes  his 
final  certificate  by  any  statement  as  to  his  intentions  in  making 

'  Barrett  v.  Hall,  1  Masou,  447.  v.  Lynch,  10  111.  521;  Eastou  v.  Cuna 

^DeFreese  v.   Truinper,   1   Johns.  Co.,  13   Ohio,   79;   Mitchell   v.    Kav- 

274;    Coolidge    v.    Brigham,  1    Met.  anagh,    38   Iowa,    286;    Nofsinger   v. 

547;  Hcermance  v.  Vernoy,  C  Johns.  Ring,  71  Mo.  149;  S.  C,  36  Am.  R.  456; 

5;    Haunon    v.    Ricliardsou,    48   Vt.  Mercer  v.  Dougherty,  8  B.  Mon.  476; 

508.  Mesner  v.  Bank,  23  Pa.  St.  291 ;  Kee- 

3  Fauks  V.  Kamp,  17  Blatch.  432;  ble  v.  Black,  4  Tex.  69;  Barker  v. 
Post,  Ch.  XVI;  Chambers  V.  Crichley,  Belknap,  27  Vt.  700;  Herrick  v.  Bel- 
33  Beav.  374.                                         "  knap,    27   Vt.   673;  Vanderwerlier  v. 

4  Robbius  V.  Clark,  129  Mass.  145;  R.  R.,  27  Vt.  130;  Miller  v.  Florer,  19 
Weeks  v.  Little,  47  N.  Y.  Super.   Ct.  Ohio  St.  356;  Hobartv.  Beers,  26  Kans. 
1;  Green  v.  .lackson,  68  Ga.  2.")0;  De  3-29;  Sweeny  v.  U.  S.,  109  U.   S.   618; 
Worms  V.  Jlellier,  16  L.  R.  Eq.  554;  Fletcher  v.  R.  R.  Co.,  19  F.  R.  731. 
IMcAvay  v.  Long,  13   111.  147;  Board         ^  Dingley  v.  Green,  54  Cal.  333. 


934  The  Law  of  Estoppel. 

it.'  So  where  a  builder  agreed  to  furnish  materials,  and  erect  a 
house  according  to  certain  plans  and  specifications,  for  a  certain 
sum  ;  the  materials  and  work  to  be  approved  by  a  specified 
architect.  On  the  order  of  the  architect  he  did  extra  work  which 
increased  the  expense.  lie  rendered  to  the  owner  a  written 
statement  of  the  extras,  to  which  the  owner  made  no  objection. 
Other  extras  were  added  on  like  order.  The  ijuilder  was  not  per- 
mitted to  recover  of  the  owner  for  any  of  the  extras.'^  In  this 
case  the  agent  exceeded  his  authority,  which  was  to  certify  to  the 
materials  and  work  put  into  the  building  and  not  to  change  the 
work  or  order  extras  ;  it  does  not  appear  whether  the  architect 
certified  to  the  extra  work  or  not.  So  where  a  party  contracted 
with  a  city  to  do  certain  work  at  prices  to  be  classified  by  tiie 
engineer  in  charge  stating  them  ;  in  addition  to  other  prices  at 
the  engineer's  disci'etion,  the  award  of  the  engineer  was  held  bind- 
ing on  the  party. ^  So,  the  certificate  of  the  register  of  deeds  as 
to  the  time  when  an  instrument  was  received  and  recorded  is 
conclusive  as  between  grantees,  mortgagees  and  subsequent  cred- 
itors.* 

§  807.  So,  where  persons  contract  to  erect  a  building  for 
another,  and  know  that  their  employer  understands  that  they 
are  undertaking  the  job  at  a  fixed  price  which  they  have  given 
him  as  their  estimate  of  what  the  building  would  cost,  they  will 
be  estopped  from  asserting,  after  they  have  completed  the  work 
without  undeceiving  their  employer,  that  there  was  no  fixed 
price  between  them,  and  from  claiming  that  they  are  entitled 
to  the  market  vnlnc  thereof.*  And  where  parties  employ  their 
contractor  to  superintend  the  erection  of  the  building,  no  bad 
conduct  on  his  part  being  averred,  they  cannot  object  that  it  is 
against  public  policy  that  lie  should  occupy  the  two  situations, 
and  that  therefore  the  last  contract  is  void."  So,  where  the 
owner  in  settling  with  the  contractors,  goes  with  his  architect  to 
the  building  for  the  express  purpose  of  examining  the  work  and 
ascertaining  whether  it  is  in  accordance  with  the  contract  or  not, 

>  Weeks  v.  Little,  47  N.  Y.  Super.  *  Ames  v.   Phelps,    18    Pick.    314; 

Ct.  1.  Tracy  v.  Jenks,  15  Pick.  465. 

*  Starkweather     v.    Goodman,     48  ^  Davis  v.  Bush,  28  Mich.  432. 

Coun.  101;  S.  C,  40  Am.  R.  152.  «  Shaw  v.  Auclrews,  9  Cal.  351. 

3  Green  v.  Jackson,  66  Ga.  250. 


Estoppel  in  Pais.  935 

and  they  both  agree  and  state  that  it  is,  they  are  estopped  in  an 
action  for  the  recovery  for  the  contract  price,  to  allege  that  it 
is  not  performed  in  accordance  with  the  terms  of  the  contract.' 
So,  where  both  parties  to  a  contract  select  the  architect,  and 
the  work  is  done  under  his  supervision,  the  owner  of  the  build- 
ing will  not  be  permitted  to  urge  defects  in  the  work.  His  decis- 
ion is  final  and  conclusive  in  the  absence  of  fraud  or  mistake." 
So,  where  in  a  contract  for  the  construction  of  a  railroad  there  is 
a  stipulation  that  the  company's  engineer  shall  be  the  sole  judge 
of  all  the  work  done,  and  of  all  variation  in  it  from  change  of 
plans ;  the  contractor  is  bound  to  abide  by  his  decision  in  all  cases 
in  which  he  can  freely  exercise  his  judgment.'  And  where  A. 
sold  B.  a  crib  of  corn,  at  a  certain  price  per  bushel,  and  it  was 
agreed  that  the  quantity  should  be  left  to  the  opinion  of  C.  Avith- 
out  measurement,  and  A.  took  the  corn  at  the  measurement  and 
used  it :  llelcl^  that  in  the  absence  of  fraud  the  estimate  was 
conclusive." 

§  808.  Where,  in  a  written  contract  for  the  erection  of  a 
house,  a  question  arose  whether  certain  work  was  extra  work, 
and  the  question  was  submitted  to  the  architect,  who  decided 
that  such  was  extra  work,  the  owner  is,  by  such  submission,  estop- 
ped from  afterward  denying  that  it  was  extra  work.^  Where  a 
district  township  has  exercised  jurisdiction  over  certain  sections 
claimed  by  another  district,  by  collecting  taxes  tiierefrom  and 
providing  schools  for  the  children  resident  therein  for  several 
years,  during  a  portion  of  which  time  the  other  district  has 
refused  admission  to  its  schools  for  scholars  residing  on  the  sec- 
tion thus  in  dispute,  and  has  made  no  claim  thereto,  the  latter 
district  will  be  estopped  from  afterwards  asserting  its  claim  to 
the  disputed  territory."  Thus,  wdiere  for  many  years,  A.'s  prop- 
erty had  been  listed  in  the  town  of  C,  and  the  taxes  regularly 

'  Cook  V.  Smith,  54  Iowa,  636.  Bank,  23  Pa.  St.  291;  Keeble  v.  Black, 

"  Lull  V.  Korf,  34  111.  220.  4  Tex.  69;  Barker  v.  Belknap,  27  Vt. 

3  Vanderworker  v.    K.    R.   Co.,  27  700;    Herrick    v.    Belknap,    27    Vt. 

Vt.  130;  Fletcher  v.  R.  R.  Co.,  19  F.  673;  Vanderwerker  v.  R.  R.  Co.,  27 

R.  731.  Vt.  130;  Miller  v.  Florer,  19  Ohio  St. 

*  Keeble  v.  Black,  4  Tex.  69.  356. 

.  ^  Stewart  v.  Keteltas,  86  N.  Y.  388;  ■  ^  School  Dist.  v.  Hobson,  25  Iowa, 

S.    C,     9    Bosw.     261;    Mercer    v.  275. 
Dougherty,  3  B.  Mon.  446;  Messner  v. 


936  Tjie   Law   of  Estoppel. 

paid  b}'  liiiii  witliont  objection.  Subsequently,  liis  son,  acting  as 
liis  agent,  with  his  knowledge  and  consent,  listed  the  property  in 
the  same  town.  A.  brought  an  action  to  recover  the  taxes,  on 
the  ground  that  the  property  was  illegally  assessed,  and  it  was 
lield  that  his  conduct  estopped  him.* 

§  809.  The  United  States  having  treated  one  as  a  collector,  under 
a  special  act,  during  a  certain  period,  was  held  to  be  estopped 
from  denying  his  right  to  tiie  compensation  provided  by  the  act." 
So,  where  a  man  has  cohabited  with  a  woman,  and  treated  her  in 
the  face  of  the  Avorld  as  liis  wife,  he  cannot  deny  this  and  claim 
to  be  her  servant,  in  respect  to  her  lands,  which  are  talcjen  in 
execution  against  liim  ;^  and  he  cannot  object  to  a  creditor  who 
supplied  her  with  goods  during  the  cohabitation,  that  she  was 
not  his  wife.''  The  levy  and  sale  of  land  by  a  sheriff,  was  left 
in  doubt  as  to  its  extent  by  the  terms  of  the  deed  ;  and  L.,  the 
purchaser,  declared  that  a  certain  island  and  other  land  was  not 
included  ;  these  were  afterwards  purchased  by  S.  If  S.  pur- 
chased in  consequence  of  L.'s  declaration,  he  and  those  taking 
from  him  by  a  deed  subsequent,  would  be  concluded.^ 

§  810.  It  has  been  held  in  numerous  cases,  that  in  the  action 
for  use  and  occupation,  the  possession  of  the  defendant  by  the 
plainrilf's  permission  being  made  out,  the  former  will  not  in  gen- 
eral be  allowed  to  dispute  his  landlord's  title.  A  receiptor  of 
property  to  the  sherill"  who  has  taken  it  in  execution,  is  estopped 
to  question  the  slieritFs  title,  though  he  have  suffered  it  to  re- 
main with  another  bv  whom    it  is    eloigned. °     As  between  the 


'  Ives  v.Xorlli  Canaan,  33  Conn.  400.  Eleven  v.   Freer,   10  Cal.    172;  Dres- 

2  U.  S.  V.  Collier,  3  Bl.  C.  C.  325.  bach  v.  :\nnais,   45    Cal.   323;  Smith 

» Divell  V.  Lciidbetter,  4  Pick.  230.  v.    Cudworlh,    24    Pick.    136;    Burs- 

■»  Jennings  v.  Whittaker,  4  Monroe,  ley  v.  Ilamiltou,  15  Pick.  40;  Dewey 

50;   Ponder  v.  Ingraliam,  4  Fla.  83;  v.  Field,  4  Met.  381;    Heed  v.  Reed, 

Johnston  v.  Allen,  80  How.  Pr.  506;  13    Iowa,    5 ;    Drewe    v.    Lawrence, 

Case  V.  Farrer,  13  Minn.  89;  Watson  40  Me.    261;   Burton   v.    Emerson,   4 

V.  Threkeld,  3  Esp.  037;    Monroe  v.  Greene  (la.)  393;   Gaff  v.  Harding,  66 

DeCliarmant,4  Camp.  315;  Blades  v.  111.  01;  Bullard  v.   Ilaskeil,  35  Mich. 

Free,   9   B.  &   C.    167:    Robin.sou    v.  132;    Dezell    v.    Odell,    3    Hill,    315; 

Mahau,  1  Camp.  245:  Ryan  v:  Sams,  Single  v.  Barnard,  29  Wis.  403;  Lewia 

13  A.  &E.  (N.  S.)400.  v.    Weber.    110   Mass.    450;    Drew  v. 

^  Schwartz  v.  ;M()ore,  5  S.  &  R.  357.  Livermore,  40  Me.  300;  Perry  v.  Wil- 

«  Phillips    v.    Hall,  8    Wend.    610;  liams,  39  Wis.  339;  Cornell  v.  Dakic, 


Estoppel  iisr  Pais.         -  937 

receiptor  and  the  officer,  in  an  action  by  the  hitter  on  the  receipt, 
where  the  receipt  admits  the  goods  to  be  the  defendant's  or  to 
have  been  attached  as  his,  the  bailee  is  estopped  by  the  receipt 
from  setting  up  property  in  himself.  If  the  officer  has  wrong- 
fiill}^  attached  the  goods  of  a  third  person,  as  the  property  of  the 
debtor,  and  has  bailed  them,  the  bailee  may,  b}'-  a  delivery  of 
them  to  the  true  owner,  protect  himself ;  for  by  such  redelivery 
the  officer  will  be  discharged  from  any  liability  for  the  goods  to 
the  creditor  and  debtor  and  the  real  owner.'  Where  one  was 
present  when  a  le^y  is  made  by  an  officer,  and  does  not  deny  the 
right  of  the  officer  to  make  the  levy,  but  furnished  a  list  of  the 
property  to  be  levied  on,  takes  an  active  part  and  assists  the  offi- 
cer, advises  bystanders  to  bid  and  disapproves  another's  forbid- 
ding the  sale  ;  although  it  may  appear  that  such  conduct  is  will- 
ful and  fraudulent,  for  the  purpose  of  deceiving  the  officer,  the 
party  so  conducting  himself  is  estopped  from  afterwards  alleg- 
ing the  officer  to  be  a  trespasser.  An  execution  defendant,  who 
sees  his  propertj^  sold  to  satisfy  a  judgment  against  him,  who 
knows  of  defects  in  the  execution  of  the  writ,  and  raises  no  ob- 
jection at  the  time,  cannot  after  the  sale  to  an  innocent  pur- 
chaser for  value,  without  notice  raise  any  objection  to  his  title. ^ 
Standing  by  and  seeing  one's  property  sold  at  an  execution  sale 
on  a  writ  against  another,  estops  the  party  from  setting  up  his 
title  as  against  the  purchaser/  Again  :  the  plaintiff  in  posses- 
sion of  land,  was  hired  by  the  defendant  to  depasture  his  cattle 
on  the  land.  In  assumpsit  for  the  price,  the  defendant  was 
liolden  concluded,  and  could  not  with   a  view  to  invalidate  the 

8b  K  Y.  253;    Acker  v.  Burrall,  21  300;  Shnmway  v.  Carpenter,  13  Allen, 

Wend.    60o;    Morrison    v.    Blodgett,  68;  Lewis  v.  Webber,  116  ]Mass.  450; 

«   N.    H.  288;    People  v.  Reeder,  25  Russell  v.  Wiuue,  37  N.  Y.  591. 

N.  Y.  302;  Terry  v.  Allis,  20  Wis.  82;  ''  Austin  v.  Loriug,  03  ]Mo.  19. 

Johns  V.  Cbiacb,  12  Pick.  557;  Robin-  ^  Epley  v.  Witherow,  7  Watts,  103; 

son  V.  Mansfield,  18  Pick.  139;  Sawyer  Carr     v.     Wallace,     7    Watts,     394; 

V.    Mason.  19  Me.  49;   Boom   Co.    v.  Ammonett   v.    Young,    14  La.    Ann. 

Wilkms,     27     Me.    345;     Barron     v.  461:   Smith   v.    Taylor,  14  La.  Ann. 

Cobleigh,  11  N.  H.  557.  603;  Moore  v.  Bowman,  47  N.  H.  214; 

'  Learned  v.  Bryant,  13  Mass.  224;  Allen   V.    Wurston,  1   Rand.  65;   Mc- 

Dewey  v.  Field,  4  Met.    883;  Fisher  Donald    v.    Liudall,    3    Rawle.   492; 

Bartlett,  8  Me.  123:  Burt  v.  Perkins,  Austin  v.  Loriug,  63  Mo.  19;  Lay  v. 

9  (Jray,  817;  Hayes  v.  Kyle,  8  Allen.  Neville,  25  Cal.  545. 


938  The  Law  of  Estoppel. 

contract,  sliow  tlie  land  to  bo  his  own  and  not  the  plaintiff's.'  A 
person  whose  land  has  been  sold  on  judicial  process  cannot  be 
heard  to  impeach  his  title.' 

§  811.  A  party  is  usually  concluded  by  admissions  or  con- 
duct upon  which  others  have  been  induced  to  act ;  and  where,  if 
he  were  permitted  to  prove  that  such  admissions  or  conduct  were 
false,  such  permission  would  operate  as  an  injury  to  the  persons 
who  M'ere  misled  by  them.  Such  admissions  and  conduct, 
although  they  cannot  operate  as  a  technical  estoppel,  which  can 
be  by  deed  or  record  only,  operate  by  way  of  an  estoppel  in  pais. 
The  party  shall  be  estopped,  where  his  intent  was  to  influence 
the  other,  or  derive  a  credit  or  advantage  to  himself.'  Thus, 
where  one  of  several  defendants  had  a  good  cause  of  defense, 
and  by  the  fraudulent  device  of  the  plaintiff  was  prevented  fi-om 
making  it  and  also  from  making  his  motion  within  the  time 
allowed  by  law  to  set  aside  the  judgment,  for  mistake,  inadvert- 
ence, surprise,  or  excusable  neglect.  The  plaintiff  and  his  ad- 
ministrator were  estopped  from  enforcing  his  judgment  against 
such  defendant,  and  especially  in  the  case  where  the  plaintiff  did 
not  attempt  to  enforce  it,  but  repeatedly  asserted  to  such  defend- 
ant that  it  was  satisfied  and  released,*  A  party  who  pledges  to 
another  goods  that  he  does  not  own,  and  at  the  same  time  makes 
a  delivery  of  them,  is  estopped  fi-om  setting  up  a  title  to  the 
goods  subsequently  acquired  during  the  existence  of  the  pledge, 
and  the  pledgee  may  recover  possession  of  them  as  against  him 

'  Eastman  v.  Tuttle,  1  Cowen,  248.  Hoisk.  28;  Jolmson  v.  Bylcr,  38  Tex. 

2  Plummer  v.  Lane,  4  H.  & McH.  72.  606;  Shade  v.  Bessinger.  3  Neb.  140; 

'Hunley  v.   Hunley,    15    Ala.   91;  White  v.  Walker.  31   111.422;  Eaton 

Gamble  V.  Gamble.  15  Ala.  966;  Calliu  v.  Winne,  20  Mich.    156;  Thornc  v. 

V.  Grote,  4  E.  D.  Smith,  296;  Grooms  Mosher,   20  K    J.   E.  257;   Laskl   v. 

V.    Rust,    27    Tex.    231;    Reeves    v.  Goldman,  18  La.  Ann.  294;  Whitacre 

Matthews,    17     Ga.    449;    Carter    v.  v.  Culver,  8  Minn.  133;  Smith  v.  Mc- 

Darby,  15  Ala.  G96:  Wilson  v.  Kelly,  Xeal,  68  Pa.  St.  164;  Tuffts  v.  Ilnycs, 

81   Pa.    St.   414;    Cameron   v.    Mont-  5  N.   H.  452;  Kingslcy  v.  Yernou,  4 

goraery,  13   S.    &   R.    128;   Clarke   v.  Sand.  361;  Young  v.  Foute,  43  111.  33; 

McAnulty,  3  S.  &   R.    364;   Sleek   v.  Ray   v.    Bell,   24   111.    444;    Kohn   v. 

King.  3  Pa.  St.  211;  Marks  v.  Swear-  :\Iarsh,  3   Rob.  (La.)  481;    Hawley  v. 

inger,   3   Pa.    St.    454;    Carothers   v.  Griswold,  42  Barb.  18. 
Cummings,  63  Pa.  St.  199;  Canal  Co.         *  Smith  v.   Cramer,  39  Iowa,  413; 

V.   Loftus,   71   Pa.  St.  418;  Moser  v.  Johnson   v.  Unversaw,  28  Ind.   435; 

Krciirh,  49  111.  84  ;  Rice  v.   Crow,  6  Stone  v.  Lamon,  28  Ind.  97. 


Estoppel  in  Pais. 


939 


or  any  other  party  possessed  without  right.'     But  if  the  transac- 
tion occurs  in  the  presence  of  the  owner  both  are  estopped.'' 

§  812.  The  class  of  solemn  admissions  whicli  by  law  are 
characterized  and  have  the  force  of  estoppels,  are  generally,  all 
agreements  of  counsel,  which  necessarily  dispense  with  the  legal 
proof  of  the  facts  admitted.  Thus,  if  a  material  allegation,  well 
pleaded,  is  admitted  by  the  adverse  party,  it  matters  not  whether 
it  be  by  pleading  some  other  matter  or  demurring  at  law  it  is 
conclusively  admitted.'  A  party  cannot  contradict  by  parol  evi- 
deuce  what  the  pleadings  themselves  admit  in  the  very  cause  on 
trial.  Nor  can  the  jury  find  contrary  to  those  admissions  which 
are  made  at  the  trial ;  they  are  conclusive  against  the  party  mak- 
ing them.''  So  is  a  stipulation  by  an  attorney  on  record  to  admit 
certain  facts  on  trial  of  the  cause.*  A  solemn  admission  under 
oath,  whether  made  in  a  pleading  or  in  a  deposition  in  a  suit 
where  the  deponent  is  not  a  party,  is  an  estoppel.*  The  court 
will  determine  whether  the  language  or  conduct  of  a  party,  or 
his  counsel,  amounts  to  a  waiver  or  estoppel,  as  a  matter  of  law.' 


'  Goldstein  v.  Hart,  30  Cal.  372. 

=  Bird  V.  Benton,  2  Dev.  L.  179; 
Govenor  v.  Freeman,  4  Dev.  L.  473; 
Hil)bard  v.  Stewart,  1  Hilt.  207; 
Hugan  V.  Brooklyn,  52  N.  Y.  283. 

^  Jones  V.  Brown,  1  Bing.  N.  C. 
484:  Jack  v.  Martin,  13  Wend.  316; 
Young  V.  Wright,  2  Campb.  139; 
Briggs  V.  Dorr,  19  Johns.  95 ;  Raym- 
ond V.  Wheeler,  9  Cow.  295;  Wilson 
V.  Turner,  1  Taunt.  398;  De  Gaillon 
V.  L'Aigle,  1  B.  &  P.  368;  Pearl  v. 
Wellman,  8  111.  311;  Seymour  v.  Sey- 
mour, 56  Wis.  314 ;  Prouse  v.  Shipping 
Co.,  13  Moo.  P.  C.  484;  Bouchard  v. 
Dias,  3  Denio,  243;  Simmons  v.  Jen- 
kins, 76  III.  482;  Hotchkiss  v.  Hunt, 
56  Me.  252;  Ross  v.  Shurtleff,  55  Vt. 
177;  Dana  v.  Bryant,  6  111.  104;  Camp- 
bell V.  Mayhugh,  15  B.  ]\Ion.  145. 

*  Vandervoort  v.  Smith,  3  Campb. 
155;  Lippincott  v.  Ridgway,  11  N.  J. 
E.  52G;  Benson  v.  Ela,  35  N.  H.  403; 
Jackson  v.  Holland,  14  Fla.  384 ;  Mc- 


Gee  V.  Smith,  3  N.  J.  L.  463;  Bloss  v. 
Plymale,  3  W.  Va.  393. 

5  Alton  V.  Gilmanton,  2  N.  H.  530; 
Langley  v.  Oxley,  1  M.  &  W.  508; 
Herbert  v.  Ale.xander,  3  Call.  499;  El- 
ton V.  Larkins,  1  M.  &  R.  196;  Daniel 
V.  Ray,  1  Hill  (S.  C.)33;  Wilson  v. 
Spring.  64  111.  18;  Doe  v.  Bird,  7  C. 
&  P.  6;  Lacoste  v.  Robart,  11  La.  An. 
33;  Marshall  v.  Cliffs,  4  Camp.  133; 
Smith  V.  Mulliken,  3  Minn.  319;  Pike 
V.  Emerson,  5  N.  H.  393;  Talbot  v. 
McGee,  4  Mon.  377;  Burbank  v.  Ins. 
Co.,  24  N.  H.  550;  Pierce  v.  Perkins, 
2  Dev.  Eq.  250;  Smith  v.  Hollister,  33 
Vt.  695;  Smith  v.  Bossard,  3  Mc.  Ch. 
406;  Lewis  v.  Sumner,  13  Met.  369; 
Hoet  V.  Squire,  1  R.  &  M.  382;  Mil- 
ward  V.  Temple,  4  Camp.  133;  Mc- 
Adams  v.  Hawes,  9  Bush,  15 ;  Blight 
V.  Banks,  6  Mon.  193. 

«  McEwen  v.  Jenks,  6  Lea,  389. 

'  Manning  v.  Cogan,  49  N.  11.  331. 


943  TiiK  Law  of  Estoppel. 

<j  813  The  priiK-iplc  of  waiver  applies  with  full  force  in  the 
trial  of  causes  and  in  the  proceeding's  of  a  cause  from  its  com- 
mencenient  to  its  final  termination.  Representation  in  courts  of 
justice  is  a  necessity  of  civilized  society,  and  the  acts  or  neglects 
of  the  representative  must  in  some  degree  be  binding  upon  the 
party  represented.  Persons  at  the  time  of  a  judicial  proceeding, 
to  which  they  are  made  parties,  represented  by  their  agents  or 
attorneys,  are  bound  by  the  acts  of  such  agent  or  attorney,  and 
by  the  knowledge  of  such  representative.  This  is  upon  the 
broad  principle  that  notice  to  an  agent  is  notice  to  tlic  principal, 
and  the  well  settled  rule  which  has  been  formulated  into  the 
maxim,  "  Quifaeitjper  alium^facit  per  6'«,"  and  it  is  upon  this 
principle  of  law  that  the  acts  of  an  attorney  bind  his  client  and 
give  rise  to  the  application  and  operation  of  an  estoppel  in  pais. 
The  application  of  these  principles  in  proceedings  in  courts  of 
justice  are  in  a  manner  different  from  those  of  an  ordinary  act  of 
an  agent  for  his  principal.  An  attorney  or  counsellor  is  an  officer 
of  the  court,  he  is  admitted  to  practice  therein  by  the  court,  he  is 
bound  by  the  rules  of  a  court,  and  is  amenable  to  the  courts  and 
subject  to  its  orders  at  all  times  ;  for  any  breach  of  duty  or  mal- 
feasance, he  is  liable  to  punishment  by  the  court,  and,  as  a  gen- 
eral rule,  cannot  be  removed  by  a  client  without  the  consent  of 
the  court.  Tlic  proceedings  in  which  the  principles  above  stated 
are  applied  aie  in  tlie  nature  of  admissions — judicial  admissions, 
as  they  are  characterized.  The}'  are  solemn  admissions,  which, 
b}"  law,  have  the  force  of  estoppels,  are  generally  all  agreements 
of  counsel,  which  necessarily  dispense  with  the  legal  proof  of  the 
facts  admitted.'  Agreements  between  counsel  in  court  are 
binding.'' 

§  8li.  When  one  puts  his  case  against  another  into  the  hands 
of  an  attorney  for  suit,  it   is  a  reasonable   presumption  that  the 

'  McCann  v.  McLennan,  3  Xeb.  2o;  Md.  200;  Albee  v.    Hayden,  25  Minn. 

Hoffei-ing    V.    Grove.    42   Barb.    548.  207;  Ilolley  v.  Young,  68  Me.  215. 
Tieadway  v.   Sioux  City,  «&c.  Co.,  40  -  Hotel  Co.  v.  Seymour.  54  Vt.  582; 

Iowa,    526  ;     Welch    v.    Bennett,    39  Baugbart  v.  Flunnurfelt,  43  N.  J.  L. 

Ind.    136;    Woodruff  v.    Stetson,    31  28;  Caldwcli   v.  McWilliams,  65  Ga. 

Conn.   51;  Blair   v.    Patterson,  47  N.  99;     Winchester    v.     Winchester,     1 

H.    523;    Bank    v.    Warrington,    40  Head,  460;  Kindell  v.  Titus,  9  Heisk. 

Iowa,   528;   Elwood    v.    Lanuou,    27  727;   Sheffield  v.  Buckingham,  Hard. 

684. 


Estoppel  in  Pais.  941 

authority  be  intends  to  confer  npon  the  attorney  inchides  such 
action  as  the  latter,  in  his  superior  knowledge  of  the  law,  may 
decide  to  be  legal,  proper  and  necessary  in  the  prosecution  of  the 
demand,  and  consequently  whatever  adverse  proceedings  may  be 
taken  by  the  attorney  are  to  be  considered,  so  far  as  they  affect 
the  defendant  in  the  suit,  as  approved  by  the  client  in  advance, 
and  therefore  as  his  act,  even  though  they  prove  to  be  unwar- 
ranted by  the  law/  An  attorney  may  waive  objections  to  notice, 
service,  and  to  the  form  of  the  writ,^  he  may  waive  the  right  of 
appeal,'  he  may  enter  into  agreements  which  will  be  held  con- 
clusive evidence  of  the  facts  agreed  to,*  he  may  take  an  appeal 
from  an  inferior  court,^  and  may  waive  statutory  prerequisites  to 
an  appeal,"  and,  generally,  he  may  make  any  admissions  of  fact, 
or  disposition  of  the  suit  which  his  client  could  make,  and  his 
agreement  to  refer  a  cause  is  binding  upon  his  client.'  For  any 
misconduct,  his  client  has  a  legal  remedy  against  him.*  Thus, 
an  agreement  made  by  attorneys,  whose  employment  was  not 
disputed,  to  postpone  an  appeal  case  in  the  common  pleas  for  the 
term  is  valid,  for  though  they  are  not  attorneys  of  record,  they 
are  the  agents  and  counsel  of  their  respective  clients,  and  what- 
ever they  do  in  conducting  the  case  is  binding  on  all  concerned.' 
Such  an  agreement  cannot  be  disregarded  hy  the  court.  So  the 
compromise  of  a  pending  suit,  by  an  attorney  having  apparent 
authority,  M'ill  be  binding  upon  his  client,  unless  it  be  so  unfair 
as  to  put  the  other  party  upon  inquiry  as  to  the  authority,  or 
imply  fraud.'" 

§  815.  The  admissions  of  attorneys  of  record  bind  their 
clients  in  all  matters  relating  to  the  progress  and  trial  of  the 
cause.  But  in  order  to  have  this  conclusive  effect  it  is  necessary 
that  they  should  be  distinct  and  formal,  or  of  the  nature  of  those 
which  are  termed  solemn  admissions,  made  for  the  express  pur- 

'  Foster  v.    Wiley,  27  Mich.    244 ;  '  Spaulding's    Appeal,    33    N.    H. 

Wakeman  v.  .Tones,  1  Iiid.  308.  479. 

-  Alton  V.  Gihnauton,  2  N.  H.  520.  «  Hanson  v.  Hoitt,  14  N.  H.  56. 

3  Pike  V.  Emerson,  5  N.  H.  393.  '  Pike  v.  Emerson,  5  N.  H.  393. 

*  Alton  V.  Gilmantou,  2  JST  H.  520;  «  Buutou  v.  Lyford,  37  N.  H.  512; 

Burbauk  v.    Ins.  Co.,  24  N.   H.  552;  Smytli  v.  Balcli,  40  N.  11.  3G3;  Brooks 

Goodrich  v.  R.  R.,  88  N.  H.  390;  Page  v.  New  Durham,  55  N.  H.  .559. 

V.  Brewsters,  54  N.  H.  184.  ^  State  v.  Kitchen,  41  N.  J.  229. 

'»  Black  V.  Rogers,  75  Mo.  441. 


942  The  Law  of  Estoppel. 

pose  of  alleviating  the  stringency  of  some  rule  of  practice,  or 
dispensing  with  the  formal  proof  of  some  fact  at  the  trial,  as  a 
substitute  for  the  regular  legal  evidence  of  the  fact.  Judicial 
admissions,  or  those  made  in  court  by  the  party's  attorney, 
appear  either  of  record,  as  in  pleading,  or  in  the  solemn  admis- 
sion of  the  attorney,  made  for  the  express  purpose  of  being  sub- 
stituted for  the  legal  evidence  of  the  fact  at  the  trial,  or  in  a  case 
stated  for  the  opinion  of  the  court.  Admissions  made  before 
trial  relating  to  the  course  of  proceeding  in  court,  are  equally 
under  its  control,  in  effect,  by  means  of  its  coercive  power  over 
the  attorney  in  all  matters  relating  to  professional  character  and 
conduct.  But  it  must  be  remembered  that  the  attorneys  are 
engaged  in  the  cause.  But  in  cases  of  mistake,  where  the 
admissions  have  been  improvidently  made,  the  court  will  gener- 
ally relieve  the  party  from  the  consequences  of  his  error,  "  7ion 
fatetur,  qui  errat  nisi  jus  ignoramtP^ 

§  816.  Defects  in  the  service  of  process,  or  such  irregularities 
as  would  be  sufficient  cause  to  quash  or  set  aside  such  process, 
and  therefore  oust  the  court  of  jurisdiction,  may  be  waived  so  as 
to  estop  a  party  from  subsequently  raising  any  objection  to  the 
jurisdiction  of  the  court.  Thus  appearing  and  pleading  to  the 
merits  is  a  w\aiver  of  personal  service,  and  cures  all  defects 
therein.*     As  a  defendant's  appearance  is  considered  as  general, 

'Banks  v.  Tract  Soc,  4  Sand.  Ch.  158;   Barkley  v.    Tapp,  87   Ind.   25; 

438;  Treadvvay  V.  R.  R.  Co.,  40  Iowa,  Schmidt  v.  Wright,  88  Ind.  56;  Hu- 

536;  Carradine  v.  Carradine,  33  Miss,  lett  v.  Nugent,  71  Mo.  131;  Etheridge 

698;  Rogers  V.  Greenwood,  14  Minn.  v.  "Woodley,   83  N.    C.  11;   Slate  v. 

333;  Doe  v.  Bird,  7  C.  &  P.  6;  Langhiy  Wenzel,  77  Ind.  428;  Andrews  v.Buck- 

V.  Oxford,  1  M.  &  W.  508;  Manshall  bee,    77   Mo.  428;  Hart  v.    Smith.  17 

V.  Cliff,    4  Camp.   133;   McAdams  v.  Fla.  767;  Bury  v.   Conklin,   23  Kan. 

Uawes,  9  Bush,  15.  460;   People  v.    Barnett,   91  111.  422; 

^  McCormick  v.   R.   R.   Co.,  49  N.  Church   v.    Cressman,  49   Iowa,  444; 

Y.  303;  Cougar  v.  R.  R.  Co.,  17  Wis.  Bowen  v.  School  Dist.,  10  Neb.  265; 

477;  Tyrcll   v.  Jones,  IS  Minn.    312;  Libby  v.  Mcintosh,  60  Iowa,  329;  Lane 

McGuire   v.    Church,  49   Conn.  248;  v.    Leech,    44   Mich.    163;    O'Neai  v. 

Allen  V.  Coatcs,  29  Minn.  46;  Ander-  Blessing,  34  Ohio  St.  33;  Holdridge  v. 

son  V.  R.  R.  Co.,  21   Minn.  30;   Law-  Holdridge,  53  Vt.  646;  Humphreys  v. 

rence  v.  Bassett,  5  Allen,   140;  Price  Humphreys,  1  IMorris  (la.)  359;  Peo- 

V.  R.  R.,  3  Mo.  App.  27;  Peters  v.  R.  pie  v.  Allen,  51  Mich.  176  ;  Pease  v. 

R.  Co.,  59  Mo.  406;  Baker  v.  State,  56  Ry.  Co.,  10  Daly  459;  Slauter  v.  Hal- 

Wis.  568;  Varner  v.  Radcliff,  59  Ga.  lowell,  90  Ind.  286;  Orvis  v.  Cole,  14 

448;  R.    R.   Co.    Nicholson,    60  Ind.  111.  App.  283;  State  v.  Chad  wick,  10 


Estoppel  IN  Pais. 


943 


unless  he  restricts  liis  motion  to  the  single  question  of  jurisdic- 
tion".' Filing  a  motion  to  dismiss  for  want  of  jurisdiction  is  a 
voluntary  appearance,  waiving  any  defect  in  the  summons.''  So,- 
applying  for  a  continuance  is  a  waiver."  Or,  in  actions  before  a 
justice  of  the  peace,  a  party,  by  appealing  from  his  judgment, 
cures  all  defects  in  the  proceedings  before  such  justice.^ 

§  817.  Ic  is  a  well  settled  principle  that  a  party  will  not  be 
allowed  to  state  one  case  in  a  bill  or  answer  and  make  out  a 
different  one  by  proof,  and  that  every  pleading  is  taken  to  con- 
fess such  traversable  matters  alleged  on  the  other  side  as  it  does 
not  traverse.  The  effect  of  such  admission  or  confession  con- 
cludes the  party,  even  though  the  jury  should  go  out  of  the  issue 
and  find  the  contrary  of  what  is  thus  confessed  on  the  record.' 
The  averments  and  allegations  made  in  a  complaint  estop  the 
plaintiff  from  questioning  the  facts  averred.*  Thus,  where  there 
is  an  allegation  that  A.  is  made  a  party  defendant  by  reason  of 
his  interest  in  the  subject  matter  of  the  action,  and  he  answers, 
the  plaintiff  is  estopped  from  denying  that  A.  is  a  proper  party 
defendant.'     So,  where  a  plaintiff'  neglects  to  avail  himself  of  a 


Oreg.  438;  Carver  v.  Ry.  Co.,  62  Iowa, 
460;  State  v.  Cooper,  59  Wis.  666; 
Brooks  v.  R.  R.  Co.,  30  Hun,  47; 
Thistle  V.  Thistle,  66  How.  Pr.  472; 
Iretoa  v.  Baltimore,  61  Md.  433;  Sar- 
gent V.  Flaid,  90  lud.  501;  Libbey  v. 
SIcIntosh,  60  Iowa,  329;  R.  R.  Co.  v. 
Roberts,  6  Col.  333;  Eui^land  v.  Gar- 
ner, 90  N.  C.  197. 

'  Aultmau  v.  Steiuau,  8  Neb.  109. 

-  Handy  v.  Ins.  Co.,  37  Ohio  St. 
.306. 

3  Miller  v.  State,  35  Ark.  276;  Dyas 
V.  Keaton,  3  Muni-ana,  495;  State  v. 
]\IcCarty,  60  ]\Id.  373. 

^  Scoofield  V.  Pope,  104  111.  130; 
Swingley  v.  Holmes,  23  III.  416;  Bur- 
risv.  Nichols,  89  111.  480;  Bucttuer  v. 
Norton,  90  111.  415;  O'Neal  v.  Bless- 
ing, 34  Ohio  St.  33:  Bouhvare  v.  R. 
R.  Co.,  79  Mo.  -494;  Grant  v.  liy.  Co., 
79  Mo.  503;  Fitteburg  v.  Ry.  Co.,  79 
Mo.  504;  Weidenhamer  v.  Bertie,  103 


Pa.  St.  448;  Spahn  v.  Sharp,  13  Mo. 
App.  133. 

5  Wilcox  V.  Skipwith,  3  Mod.  4; 
Hewitt  V.  Maguire,  2  Exchq.  80;  Hud- 
son V.  Jones,  1  Salk.  91;  Nicholson  v. 
Simpson,  Fort,  556;  Jones  v.  Brown, 
1  Bing.  N.  C.  484;  Bingham  v.  Stan- 
ley, 1  G.  &  D.  337;  Robbins  v.  Maid- 
stone, 4  Q.  B.  815;  Smith  v.  Martin, 
9  M.  &  W.  304;  King  V.  Norman,  4  C. 
B.  884. 

•>  Armstrong  v.  Fahnstock,  19  3Id. 
58;  Brantley  v.  Kee,  5  Jones  Eq.  333; 
Willes  V.  Kane,  3  Grant  Cas.  60; 
Stnyvesant  v.  Gusseler,  13  xVbb.  Pr. 
N.  S.  6;  Loveladj'  v.  Davis,  33  Miss. 
577;  Morton  v.  Outlaud,  18  Ohio  St. 
383. 

■I  Goldthwait  v.  Bradford,  36  Ind. 
149;  Jermain  v.  Langdon,  8  Paige,  41; 
Benson  v.  Ela,  35  N.  H.  402;  Wood 
V.  Mather,  38  Barb.  473;  Kingsbury  v. 
Buchanan,  11  Iowa,  387. 


944  The  Law  of  Estoppel. 

fact  existing  at  the  comiiienceraent  of  liis  action,  lie  cannot  in  a 
subsequent  action,  in  which  the  point  of  issue  is  the  same,  avail 
liimself  of  it.'  All  representations,  averments  and  allegations  in 
pleadings,  made  by  the  parties,  are  conclusive ;  that  is,  they  are 
estoi)ped  to  aver  to  the  contrarj- ;  as,  for  example,  a  plea  of  ten- 
der estops  the  party  to  deny  indebtedness  in  the  sum  named  in 
the  plea.' 

§  818.  The  questions  which  usually  arise  with  respect  to 
admissions  in  pleadings  relate  to  tiieir  elfect  in  the  same  suit,  and 
it  may  be  stated  broadly  that  whenever  a  material  a?erment,  well 
pleaded,  is  passed  over  b}'  the  adverse  party  witliout  denial, 
whether  it  be  by  pleading  in  confession  and  avoidance,  or  by 
traversing  some  other  matter,  or  by  demurring  in  law,  or  by  suf- 
fering judgment  to  go  by  default,  it  is  thereby  for  the  purpose 
of  pleading,  if  not  for  the  purpose  of  trial  before  the  jury,  con- 
clusively admitted.'  So,  any  confession  or  admission  made  in 
pleading  in  a  court  of  record,  whether  it  be  express  or  implied 
from  pleading  over  without  traverse,  will  forever  preclude  the 
party  from  afterward  contesting  the  same  fact  in  any  subsequent 
suit  with  his  adversary.  The  admissions  made  by  either  of  the 
parties,  whether  in  direct  terms  or  by  failure  to  traverse  material 
allegations  when  called  upon  to  do  so,  are  as  conclusive  and  as 
available,  as  a  bar,  as  if  they  were  proved  by  M-itnesses.  An 
admission,  by  way  of  a  demurrer  to  a  pleading,  is  just  as  conclu- 
sive in  favor  of  the  opposite  party  as  though  made  ore  tenud 
before  a  jury.  It  admits  everything  that  the  opposite  party 
would  have  been  compelled  to  prove  in  order  to  sustain  the  issue, 
ir  it  had  been  traversed.'  Omittino-  to  traverse  a  material  allega- 
tion  so  far  admits  it  that  the  party  who  thus  pleads  over  cannot 

>  Sullivan  v.  Mining   Co.,    89   Cal.  484;  Peerless,  The,  1  Lush.  Adm.  103* 

459;  Bender  v.  Belkna*!),  23  La.  Ann.  Andrews  v.   lus.   Co.,    18   lluu,    163; 

764.  School  Dirtetnis  v.  Hernandez,  31  La. 

="  Beach  v.  Jeflrej-,  1  111.  App.  283;  Ann.  lo8;  Dahlman  v.  .Foster,  55  Wis. 

Fowler  v.  Stevens,  29  La.  Ann.  353;  382;   Byrne  v.  Bank,  31  La.  Ann.  81: 

Willis  V.  Willis,  59  Tenn.  183.  Bank  v.  Piukors,  83  N.  C.  377;  Ilen- 

-'  Jones   v.    Brown,  1  Bing.    N.  C.  shaw  v.  R(j()t,  60  Ind.  220;  Lessing  v. 

484;   De  Gaillen  v.  L'Aigle,  1  B.  it  P.  Cunningham,  55  Te.v.  231. 

368;   Stephen   v.    Pell,  2  Dowl.    029;  *  King  v.    :Normau,   4   C.    B.    884; 

Grecu   T.    Hearne,  3  Tr.  301;  Prowse  Henshaw  v.   Ront.   60  Ind.   220;  Ins. 

V.  Shipping  Co.,    13  Moo.    P.  C.   R.  Co.  v.  Ins.  Co.,  97  Pa.  St.  15. 


Estoppel  ix  Pais. 


945 


disprove  it.'  Altliougli  a  petition  is  demnri-able,  if  the  defendant 
confesses  and  avoids,  he  waives  the  defects  of  the  petition."  So, 
pleading  over  waives  a  demurrer  or  plea  in  abatement."''  So, 
Avhere  a  party  is  sued  by  a  wa-ong  name,  is  served  Avith  process 
and  fails  to  plead  the  misnomer  in  abatement,  the  judgment  will 
be  conclusive  on  him.*  So  a  party  consenting  that  an  action  be 
referred,  is  estopped  from  claiming  that  the  referee  lias  no  juris- 
diction." So  a  party  may,  by  going  to  trial  without  objecting  to 
a  defect  of  parties,  be  concluded." 

§  819.  By  taking  issue  on  a  bad  plea,  failing  to  demur,  pro- 
ceeding to  trial  without  taking  advantage  of  defective  pleas, 
amending  pleadings  after  demurrer,  pleading  the  general  issuea 
and  other  like  circumstances,  will  have  the  same  effect.  Thus,  a 
party  failing  to  take  advantage  of  defects  or  omissions  in  the  pro- 
ceednigs  of  an  inferior  tribunal,  is  estopped  from  taking  advan- 
tage thereof  in  an  appellate  court.'     So  in  criminal  proceedmgs, 


1  Bonzi  V.  Stewart,  4  M.  &  Gr.  495; 
Carter  v.  James,  13  M.  &  W.  145; 
Wisener  v.  Maupin,  58  Tenn.  342. 

*  Bancher  v.  Gregory,  9  Mo.  App. 
102;  Galvil  v.  Yv  oolen,  66  Ind.  464; 
Evans  v,  Lucas,  12  IS.  C.  56;  Davis  v. 
Hall,  92  111.  95;  Pudney  v.  Buckhardt, 
63  Ind.  179. 

3Gradle  v.  HuflEman,  105  111.  148; 
Butler  V.  Church,  14  Bush,  540;  While 
V.  Gray,  4  III.  App.  228;  Moran  v.  Ab- 
bey, 58  Cal.  163;  State  v.  Sappingtou, 
68  Mo.  454;  Seymour  v.  Hubert,  92 
Pa.  St,  49;  Marshall  v.  Vicksburg,  15 
Wall.  146;  Beall  v.  Territory,  1  K 
Mex.  58;  Lane  v.  R.  R.  Co.,  52  Iowa, 
18;  Despatch  Co.  v.  W eddies,  1  N. 
Mex.  58;  Thompson  v.  School  Dis- 
trict, 71  i^Io.  495;  R.  R.  Co.  v.  Parks, 
o8  111.  373;  Muscatine  v.  Packet  Co., 
47  Iowa,  350;  Express  Co.  v.  Patter- 
son, 73  Ind.  430;  Stanberry  v.  Kerr, 
6  Col.  28. 

•*  Ins.  Co.  v.  French,  18  How.   404; 

Deems  v.  Canal  Line,  14  Bl;itr:lif.  474; 

Guinard  v.  Heysinger,  15  111.  288;  R. 

R  Co.  V.  Burness,  82  Ind.  8o;  State  v. 

Vol.  I.— 60 


Telephone  Co.,  3o  Ohio  St.  29i5  ; 
Hammond  v.  People,  33  Hi.  44;  Baker 
V.  Bessy,  73  Me.  472;  McCreevy  v 
Everdmg,  54  Cal.  168. 

5  Elliott  V.  Lewis,  16  Hun,  581;  Cur- 
tis V.  Ja(;kson,  23  Minn.  268;  Papkee 
v.  Papkee,  30  Minn.  260;  Cross  v. 
L-'vy,  57  Miss.  G34. 

"  Yonley  v.  Thompson,  31  Ark.  399; 
Carey  v.  Wheeler,  14  Wis.  281;  Jes- 
sup  V.  Bank.  14  Wis.  331;  Stillwell  v. 
Kellogg,  14  Wis.  461. 

*  Meagher  v.  Morgan,  3  Kas.  372; 
Hughes  V.  Fet'ler,  18  Iowa,  142; 
Keene  v.  Mitchell,  13  Mich.  207;  Storm 
V.  Worland,  19  Ind.  203;  Express  Co. 
V.  Pickuey,  29  111.  392;  Mooie  v.  Les- 
suer,  18  Ala.  606;  Clark  v.  Fensky,  3 
Kas.  389;  Jones  v.  Jones,  13  Iowa, 
276;  St.  Johns  v.  Hardwick.  17  Ind. 
180;  Joy  v.  R.  R.  Co.,  17  Ind.  262; 
Bellv.  Bruen,  I  How.  169;  Caldwell  v. 
Bank,  20  Ind.  294,  Maynaid  v.  Freder- 
ick, 7  Cush.  247;  Bank  v.  Bank,  2  Wall. 
252;  Walker  v.  Sauvjnet,  92  U.  S.  90: 
Kim  V.  Russ-11.  VJ  Wall  343;  Heu- 
der.on    v.    Reeves,    6    Blackf     101; 


94G  The  Law  of  Estoppel. 

if  the  party  appeai-s  generally  and  pleads  not  guilty  to  the  com- 
plaint, he  thereby  waives  objections  to  matters  of  form.'  The 
reirnlarity  of  a  ])lea  cannot  be  objected  to  after  a  trial  on  the 
merits,*  and  by  going  to  trial  or  obtaining  a  continuance  a  party 
Vv'aives  liis  right  to  security  for  costs.*  So,  parties  wlu>  iire  prop- 
erly brought  into  court,  and  fail  to  make  their  defenses  to  actions 
against  them,  will  be  held  to  liave  waived  thejn.*  So,  going  to 
trial  before  a  referee,  without  requiring  an  oatli  to  be  adminis- 
tered, Avaives  an  objection  to  the  admission  of  such  oath.*  So,  a 
party,  accepting  an  amount  determined  to  be  due  him  by  a  court, 
waives  liis  ]-ight  of  appeal.*  Parties  consenting  to  the  amend- 
ment of  a  judgment  are  estopped  from  afterwards  objecting 
thereto.'  So,  where  a  party  files  cross  interrogatories,  after  the 
commissioner  has  been  apjwinted,  and  subsequently  stipulates  as 
to  the  manner  in  which  the  commission  should  be  returned,  can- 
not deny  the  authority  of  the  commissioner  to  take  the  deposi- 
tion.* These  instances  will  be  sufficient  lo  show  the  wide 
application  of  the  doctrine  of  estoppel  and  its  effect  in  judicial 
proceedings  prior  to  the  rendition  of  a  judgment.  Other  instances 
are  cited  of  the  application,  of  this  doctrine  in  chapter  VI.  of  this 
work. 

§  820.  The  rule  that  a  party  may  be  estopped  by  admissions 
on  his  pleadings,  applies  to  all   the  parties  to  a  cause.     Thus,  u 

Wboder  v.    Sedgwick,   94  U.    S.    1;  474;  Adams  v.  Miller,  14  III.  71;  Sttite 

Richie  v.    State,  58   Ind.  355;   New-  v.  McCarthy,  60  Md.  373. 

comb  V.    WcMxl,    97  U.    S.    581;  Kel-  *  IVIelick    v.    Bank,    53    Iowa,    94; 

leran  v.  Brown,  4  Mass.  443;  Johnson  Goodwin   v.    Kency,   49    Conn.    282; 

V.   Jolinsou.  12  Bu.sli,  485;  Centre   v.  Parker   v.    Terry,    70   Ind.   204;   Mc- 

Gibney,  71  111.  557.  Keever    v.     Jcnks,     59     Iowa,    300; 

'  State  V.  Regan,  G7  Me.  380.  Werthein  v.  Trust    Co.,  11    Fed.   R. 

2  R.   R.  Co.  V.  Pearson,  128  Mass.  689;  Ins.    Co.  v.  Ins.   Co.,  97  Pa.  St. 

445;   Huntington   v.    ]\lendenhall,   73  15. 

Ind.  460;  Reimer  v.  Doergc,  Gl  How.  ^  Newcomb  v.  Wood,  97  U.  S.  581; 

Pr.  142.  R.   R.  Co.  v.  Alfred,  3  111.  App.  511; 

"  Shuttleworth  v.  Dunlop,34  N.  J.  E.  Supervisors  v.  Ehlers,  45  Wis.  281. 

488;  Lincoln  v.  Hancock,  5  Ark.  703  ^  Hamilton   County    v.    Bailey,    13 

Adams  v.  Miller,  12  111.  27;  Randolph  I^'eb.  50;  R.  R.  Co.   v.  Chamberlain, 

V.    Emerick,  13   III.  344;    Harper    v.  84  111.  333;  Stewart  v.  Cross,  56  Ala. 

Columbus,    35    Ala.    127;    R.    R.    v.  22;  Longfellow  v.  Moore,  102  111.  289. 

Soutli,  43  111.  176;  Mayer  v.  Tyson,  1  ^  Steckmesser  v.  Graham, 10  Wis.  37. 

Bland.  559;    Roberts  v.  Fales,  32  III  **  Crowther  v.  Rowlandson,  27  Cid. 

376. 


Estoppel  in  Pais.  947 

defendant  setting  up  in   an  answer  in  a  legal  proceeding  a  dis- 
claimer of  title  estops  him  from  denying  plaintiff's  title/ 

A  judicial  admission  bj  a  party  in  one  suit  with  regard  to  the 
nature  of  a  contract  estops  him  from  introducing  evidence  in  a 
subsequent  suit,  to  show  that  the  contract  was  of  a  different 
nature.*  Where  a  party  gives  a  reason  for  his  conduct  and 
decision  touching  any  thing  involved  in  a  controversy,  he 
cannot,  after  litigation  has  begun,  change  his  ground  and  put  his 
conduct  upon  another  and  a  different  consideration.  He  is  not 
permitted  thus  to  mend  his  hold.  He  is  estopped  from  doing  it 
by  a  settled  principle  of  law.'  Thus,  defendant  gave  as  a  reason 
for  neglect  to  ship  cattle,  want  of  cars,  and  gave  evidence  to  that 
effect  on  the  trial.  Afterwards  he  claimed  that  the  Sunday  Law 
of  West  Virginia  forbade  the  shipment  of  cattle  on  Sunday  ; 
he  was  not  allowed  to  raise  this  point."  So,  a  demand  by  the 
plaintiff,  and  absolute  refusal  by  the  defendant,  unaccompanied 
by  any  intimation  that  he  would  ever  comply  with  the  demand, 
precludes  the  defendant  from  setting  up  on  the  trial,  the  excuse 
that  he  had  not  reasonable  time  and  opportunity  afforded  him 
to  comply  with  the  demand  before  the  commencement  of  the  suit;' 
So,  where  the  ag:ent  of  the  state,  who  took  water  under  a  claim  of 


'Jordan  v.    Stevens,   55  Mo.    361;  258;  Gold  v.    Banks,   8   Wend.   567; 

Greely  v.  Thomas,  56  Pa.  St.  35;  Wal-  Holbrook  v.    Wight,  24  Wend.  109; 

lace  V.   McMicken,     2    Disney,    564;  Everett    v.    Saltus,    15    Wend.   474; 

Stribling   v.    Prettyman,  57   111.  371;  Wright  v.  Reed,  3  T.  R.  554;    Duffey 

Wells  V.  Kane,  2  Grant  Gas.  60;  Fol-  v.  0,Donuovan,  46  N.  Y.  223;  Winter 

ger  V.  Palmer,   35    La.   An.  743;  Gil-  v.  Coit,    7   N.    Y.  294;    Turnbow   v. 

morev.  Devliu,4  McArth.  806.  Broach,  12  Bush,  455;  Beam   v.  Mc- 

^  Devall  V.  Wattersou,  18  La.  Ann.  Comber,    35   Mich.    455;    Belauger  v. 

136;   Turnbow   v.  Broach,    12  Busb,  Hersey,  90  111.  70;  State  v.  Judges,  34 

455;  Hooker   v.    Hubbard,  102  Mass.  La.  An.  1220;  McCarthy  v.  Eggers.lO 

239;  Bankv.   Northwestern,  &c.  Co.,  Ben.  688;    Pitts  v.  Gilliam,   1   Head, 

35  Iowa,  224;  Wells  v.  Kane,  2  Grants  549;  Smith  v.  Babcock,  3  Sumn.  584; 

Cas.  60;  Hamilton  v.    Zimmerman,  5  Bank  v.  Dimmock,  24  N.    J.   Eq.  26; 

Sneed,  39;    McQueen  v.    Gamble,  33  Piper  v.  Sloauaker,  2  Grants  Cas.  113; 

Mich.  344;  Isler  v.  Harrison,  74  N.  C.  Marsh  v.  Mitchell,  20   N.  J.  Eq.  497; 

64;    Hart's    Appeal,    32   Conn.     520;  Head  v.  Head,  7   Jones  L.   620;  Bart- 

Blain  v.    Patterson,   47  N.    H.    523;  lett  v.  Bartlett,  113  Mass.  312. 

Bond  V.  Clarke,  6  Allen,  361;  Lippin-  4  Railway  Co.  v.  McCarthy,    96  U. 

cott  V.   Ridgway,    11   N.  J.  Eq.  526;  S.  258. 

Jarstadt  v.  Morgan,  48  Wis.  245.  ^  Albee  v.  Cole,  39  Vt.  319. 

3  Railway  Co.  v.  McCarthy,  96  U.S. 


948  The  Law  of  Estoppel. 

pcrniiiiicnt  right,  thereby  iiulnciiio-  the  plaintiff  to  bring;  his  action 
to  try  the  right  to  permanent  nse,  instead  of  cUiiniing  (hunages 
for  the  temporary  ap])ropriation  is  estopped  to  change  his  ground, 
and  set  up  a  temporary'  aj)propriati()n  only,'  and  where  A.  cove- 
nanted to  sell  certain  land  to  Jj.,  giving  him  a  deed  "  witli  full 
covenants  of  warranty."  lie  thereafterward,  by  his  agent, 
tendered  a  deed  containing  covenants  of  his  lawful  seizure  in  fee 
simple,  and  that  he  would  warrant  and  uefend  the  title,  &c. 
without  rnoi'e  and  demanded  payment.  B.  looked  at  the  deed, 
made  no  objection  to  it,  but  handed  it  back,  stating  he  was  not 
prepared  to  pay  ;  he  had  previously  gone  into  possession  under 
the  contract  of  purchase  ;  A.  then  sued  him  in  ejectment.  B.  was 
estopped  to  interpose  objections  that  the  covenants  in  the  deed 
were  not  sufficient  to  meet  the  agreement,''  and  after  the  defend- 
ant in  a  libel  suit,  has  admitted  tlic  publication  of  the  libel,  and 
attempted  to  justify  in  his  answer,  he  is  estopped  from  averring 
an  allegation  of  the  libel  as  declared  upon  in  the  complaint  to  be 
insufficient.' 

So  an  importer  l)aving  set  forth  in  his  written  protest  the 
ground  of  his  objection  to  the  payment  of  custom  duties  exacted 
by  the  collector,  can  not,  in  his  suit  against  the  collector,  recover 
them  upon  any  other  ground  than  that  so  set  forth."  So  a  defend- 
ant upon  whose  statements  a  plaintiff  has  relied  in  suing  out  an 
attachment,  i^  estopped  from  denying  them  to  defeat  such  attach- 
ment." Parties  are  bound  by  their  written  admissions  made  in 
the  progress  of  a  cause,  and  cannot  repudiate  them  at  pleasure.' 
A  party  who  claims  the  benefits  of  a  deed  of  trust  made  by 
another  providing  for  certain  debts,  and  swears  to  an  answer  in 
which  it  is  insisted  that  the  deed  is  lo?ia  fide  and  the  debts 
secured,  just,  is  estopped  fi'om  pleading  non  est  factum  to  a  note 
which  is  one  of  said  del)ts.  Xo)'  v;ill  he  be  allowed  to  introduce 
evidence  that  his  name  was  foi"i>:ed  to  the  note.' 


MViilralli  V.  l?e(lfiol(l,  18N.Y.  457;         ^  c'ocke  v.    Kuykendall,    41    Miss. 
Baxter  V.  McKinley,  10  Cal.  76.  65;  Jarboev.  Colvin,  4  Bush,  70. 

"  Gregg  V.  Van  Pliul,  1    Wall.  274.  '■  Ehvood   v.    Laiinon.  27   Md.  200; 

3  Hemphill  v.  ilolley,  4  Miiin.  2o3.      Hollcy  v.  Yoiiug,  68  Me.  215;,Albee 
<  Daviea   v.    Arthur,  9G  U.    S.  148.      v.  Hayden,  25  ]iliim.  267. 

'  Pitts  V.  Gilliam,  1  Head,  549. 


Estoppel  in  Pais.  949 

§  821,  A  party  who  has  tried  his  case  upon  a  theory  involving 
the  tacit  concession  of  a  particular  fact,  will  not  be  permitted  in 
an  appellate  court  to  obtain  a  reversal  of  the  judgment  against 
him  upon  a  theory  involving  a  denial  of  that  fact.'  So  a  party 
will  not  be  heard  to  contradict  and  go  behind  the  express  juris- 
dictional allegations  of  his  own  petition,  for  the  purpose  of 
ousting  the  appeal  of  his  adversary,  who,  in  good  faith,  has 
accepted  and  acted  upon  the  same.*  And  where  the  petitioner 
sets  up  and  relies  upon  an  express  contract,  he  cannot  afterwards 
rely  upon  another  state  of  facts,  as  that  the  contract  was  partly 
express  and  partly  implied.'  In  suit  against  an  owner  for  repairs 
done  to  a  vessel,  it  appeared  at  the  trial  that  defendant  was  a 
mortgagee  out  of  possession,  but  as  such  defense  was  not  set  up 
in  his  answer,  it  was  held  that  no  question  of  his  liability  as  such 
could  be  considered.  He  then,  at  the  trial,  asked  leave  to  amend 
his  answer  and  set  up  this  defense.  Held,  that,  having  pleaded 
ownership,  and  set  up  an  agreement  only  consistent  with  owner- 
ship, and  liaving  stood  by  at  the  trial  and  applied  to  amend  only 
after  an  effort  by  another  owner  to  prove  that  the  vessel  was 
under  charter  to  a  third  person  had  failed,  he  could  not  ameud.^ 
So,  the  pretended  owner  of  a  steamboat  who  permits  services  to  be 
i>endered  and  advances  to  be  made  on  the  boat  on  his  apparent 
responsibility,  cannot  afterwards  set  up  for  a  defense  to  an  action 
for  such  services  and  advances,  the  fact  that  he  was  not  the 
owner.* 

Thus  where  proceedings  were  instituted  under  a  statute  to 
acquire  title  to  lands  for  a  public  market.  C  the  owner  of  lands 
sought  to  be  acquired,  joined  in  the  proceedings,  by  petition, 
asking  for  the  appointment  of  a  person  named  as  one  of  the  com- 
missioners of  estimate  and  assessment,  who  was  appointed.  The 
commissioners  duly  executed  their  office,  appraising  among  other 
lands  that  of  C,  who  thereupon  moved  to  set  aside  the  order 
appointing  the  commissioners,  because  of  the  alleged  unconstitu- 
tionality of  said  act,  and  of  non-compliance  by  the  moVing  party 
with  certain  statutory  conditions.     Ileld^  that  C,  was  estopped 


*  Brady  v.  Seligman,  75  Mo.  31.  ^  Belanger  v.  Hersey,  90  111.  70. 

»  State  V.  Judges,  34  La.  An.  1320.         *  McCarthy  v.  Eggers,  10  Ben.  688. 

*  Hailey  v.  Franks,  18  La.  An.  559. 


950  The  Law  of  Estoppel. 

from  raising  these  questions.  C.  is  in  this  position.  He  parti- 
cipjitod  as  an  actor  in  procuring  the  order  which  he  now  seeks  to 
set  aside,  and  took  his  chance  for  a  satisfactory  vahiation  of  his 
property  for  the  purpose  contemplated  by  the  act.  To  that  end 
there  was  not  only  acquiescence  on  his  part,  but  intelligent  and 
efficient  dealing  with  the  matter  and  consent  to  the  order.  By 
this  consent  he  must  be  deemed  to  have  made  his  election  and 
should  be  held  to  it."' 

§  822.  Errors  may  be  avoided  or  cured  by  an  estoppel,  which 
is  an  act  by  whic-h  a  person  is  estopped  or  precluded  from  either 
denying,  or  insisting  upon  a  matter  which  is  inconsistent  or 
repugnant  to  his  former  act,  which  may  be  by  the  record,  or  by 
deed,  or  matter  in  jpais.  The  effect  of  an  act  or  admission 
depends  upon  the  manner  and  purpose  for  which  it  is  made.  It 
may  be  presumptive  evidence  only  of  the  truth,  and  liable  to  be 
denied  or  disproved.  But  if  made  for  the  purpose  of  influencing 
the  conduct,  or  of  deriving  a  benefit  from  another,  so  that  it  can 
not  be  denied  without  a  breach  of  good  faith,  the  law  enforces 
the  rule  of  good  morals  as  a  rule  of  policy,  and  precludes  the 
part}'  from  repudiating  his  own  acts,  or  denying  the  truth  of  his 
admissions  ;  and  an  act  or  admission  of  record,  or  made  for  the 
purpose  of  inducing  another  or  the  court  to  act  upon  it,  or  made 
Tinder  the  seal  of  the  party,  is  of  such  binding  eflicacy,  that  the 
party  is  precluded  and  estopped  from  denying  the  act  or  disjirov- 
ing  the  truth  of  it.  The  obligation  created  by  an  estoppel,  not 
only  binds  the  party  making  it,  but  all  persons  privy  to  him.^ 
Though  admissions  and  acts  in  ])ais  may  be  strong  evidence 
against  the  party  making  them,  yet  they  will  operate  as  an  estop- 
pel in  favor  only  of  those  whose  conduct,  it  may  be  fairly 
supposed,  they  were  intended  to  influence  and  not  to  strangers.^ 
Admissions  so  made,  though  made  mistakingly  in  good  faith,  may 
yet  be  made  under  such  circumstances  as  to  operate  as  an  estoppel 
and  preclude  the  party  from  gainsaying  it.*  Thus,  if  on  the  trial 
the  party  refrains  from  objecting  to  incompetent  evidence,  it  is  pre- 

>  Cooper,  in  re,  93  N.  Y.  567.  384. 

"^  Douglas    v.   Scott,    5    Ohio,   194;  '^  Morgan  v.  Spangler,  14  Ohio  St. 

Conover  v.  Porter,  14  Ohio  St.  450;  102. 

Jackson  «&  Co.  v.  Holland,  14  Fla.  *  Beardsley  v.  Foot,  14  Ohio  St.  414. 


Estoppel  in  Pais. 


951 


Slimed  that  he  waives  the  objection  to  it,  and  will  be  estopped  fi-oin 
afterwards  claiming  it  as  an  error.  So,  if  he  obtains  an  action 
of  the  court  upon  his  own  motion,  he  is  estopped  from  claiming 
it  as  an  error.  If  by  the  party's  deed  he  has  covenanted  not  to 
prosecute  error,  he  is  thereby  estopped  from  doing  so.  So  in  all 
other  matters  b}'  which  he  has  induced  the  opposite  party  or  the 
court,  in  the  progress  of  the  case,  to  rely  upon  or  abide  by  iiis 
act,  promise  or  doings,  or  acts  inconsistent  and  repugnant  to  what 
he  afterwards  claims,  he  will  be  estopped.  The  mere  silence  of 
counsel  on  the  trial,  as  omitting  an  objection  to  a  defect  in  the 
testimony,  will  conclude  the  client,  even  in  respect  to  the  exist- 
ence of  records,  documents,  and  other  testimony  of  the  most 
important  character,  on  the, familiar  principle  that  a  silent  con- 
cession has  been  acted  upon  by  the  other  party,  or  that  he  has 
omitted  evidence  which  he  would  otherwise  have  produced.' 

§  823.  Erroneous  steps  taken,  or  failing  to  object  to  the 
admission  of  testimony  at  the  time,  or  the  overlooking  of  an 
irregularity  without  excepting  thereto  by  the  party  who  proceeds 
in  the  trial  of  a  cause,  will  as  a  general  rule,  prevent  him  from  sub- 
sequently reverting  back  to  it  for  the  purpose  of  objecting  or 
taking  exceptions  to  it ;  by  his  omission  at  the  time  he  waives 
such   irregularity,  and,  his  waiver   is   conclusive   in   the  cause." 


'  Miller  v.  Macklot,  13  Ind.  217; 
Stamhofski  v.  Steffens,  79  111.  303; 
Richie  V.  State,  58  Ind.  355;  Jencks  v. 
Smith,  1  N.  y.  90;  Bates  v.  Ball,  73 
111.  108;  Dickerson  v.  Turner,  15  Ind. 
4;  Newton  v.  Brown,  1  Utah,  287; 
Holbvook  V.  Wright,  24  Wend.  169; 
Menderback  v.  Hopkins,  8  Johns. 
436;  Baldwin  v.  Calkins,  10  Wend. 
167;  Jackson  v.  Harrow,  7  Johns. 
231;  Oakley  v.  Van  Horn,  21  Wend. 
303;  Fort  v.  Monroe,  20  Wend.  210; 
Littiech  v.  Mitchell,  73  111.  603;  Hol- 
man  v.  Bachus,  73  Mo.  49;  Earnhardt 
V.  Smith,  86  K  C.  473;  Machine  Co. 
V.  Lewis,  10  111.  App.  191;  McMillan 
V.  R  R.  Co.,  56  Iowa,  41;  Affleck  v. 
Snodgrass,  8  Ohio  St.  234;  Stock 
Yards  v.  Himrod,  88  111.  38;  Gibbs  v. 


Coonrod,  54  Iowa,  736;  Benhara  v. 
Puidy,  48  Wis.  99;  Cunningham  v. 
Sopillman,  72  Ind.  62;  Bull  v.  Rowe, 
13  S.  C.  355;  V/ilson  v.  Sykers,  84  iN:. 
C.  215;  Kinney  v.  Bauer,  6  111.  App. 
267;  The  Elizabeth,  Blatch.  P.  C.  250; 
Colwell  V.  Lawrence,  38  Barb.  643; 
Fcwv.  Reynolds,  20  Barb.  275;  Col- 
lins V.  Bali,  31  Hun,  187;  Harris  v. 
Brown,  93  N.Y.  390;  Bank  v.  Ewing, 
21  W.  Va.  208;  Perkins  v.  Jones,  62 
Iowa,  345;  Cragin  v.  Lovell,  109  U. 
S.  194. 

*  Darjent  v.  Yivant,  1  East,  330; 
Pearson  v.  Rawlins,  1  East,  77; 
Higley  V.  Lant,  3  Mich.  612;  Warren 
V.  Glynn,  37  N.  H.  343;  Belt  v.  Black- 
burn, 28  Md.  240;  Krull  v.  Keener,  18 
111.  66;  Pryce  v.  Ins.  Co.,  29  Wis.  274; 


952 


The  Law  of  Estoppel. 


Thus,  where  an  instrument  is  offered  in  evidence,  and  the  opposite 
party  objects  to  its  reception,  and  !iame8  one  ground  of  objection 
which  is  overruled,  and  fails  to  object  on  the  ground  that  its  exe- 
cution is  not  proven,  lie  thereby  admits  that  fact  and  cannot 
thci-eafter  question  it.'  The  defendants  liaving  specified  their 
objection,  it  must  be  considered  that  all  others  were  waived,  or 
that  there  was  no  ground  upon  which  others  could  stand." 

§  824,  Where  a  party  had  an  opportunity  to  except,  and  has 
not  excepted,  he  cannot  again  bring  the  matter  either  before  the 
master  (or  the  court)  on  circuit  or  on  appeal.  The  principle  is 
essential  to  the  due  and  orderly  administration  of  justice,  and 


Trans.  Co.  v.  Wbittaker,  16  Wis.  322; 
3Iiniug  Co.  v.  Miiiiug  Co.,  16  Nev. 
64;  .Joces  v.  Van  Patlen,  3  Md.  107; 
Hembergcr  v.  State,  5  Md.  300;  Legner 
V.  State,  8  Md.  490;  Jolly  v.  Draw- 
bridge Co.,  9  Md.  417;  Johnson  v. 
Bell,  10  Ind.  63;  Coan  v.  Grimes,  63 
Ind.  21;  Blackeler  v.  House,  67  Ind. 
414;  Goodwin  v.  Smith,  72  Ind.  113; 
S.  C,  37  Am.  R.  144;  Kol)in.son  v. 
Snyder,  74  Ind.  110;  Backus  v.  Gulien- 
tine,  76  Ind.  367;  Alcorn  v.  Morgan, 
77  Ind.  184;  Lodge  v.  Johnson,  78  Ind. 
110;  Ins.  Co.  V.  Ycarick,  78  Ind.  202; 
Dickson  v.  Rose,  87  Ind.  103;  Wagner 
V.  Jones.  77  N.  Y.  590:  Fisher  v. 
Wilson,  16  Blatchf.  C.  C.  220;  Parli- 
man  v.  Young,  2  Dak.  175;  Fountain 
V.  Ware,  56  Ala.  568;  Draper  v. 
Springport,15F.  R.  328;  Cook  v. Perry, 
43  Mich.  623;  Wasson  v.  Linsler,  83 
N.  C.  575;  State  v.  To.sney,  26  Minn. 
262;  Meyer  v.  Brinkelman,  5  Col.  262; 
Potter  V.  Xeal,  62  flow.  Pr.  158; 
Shonp  V.  State,  70  Ind.  459;  Weber  v. 
Dunn,  71  Me.  331;  Fry  y.  Tilton,  14 
^'eb.  450;  Bray  v.  Libhy,  71  Me.  276; 
Walsh  V.  Wright,  101  Ili.  171;  Wilkins 
V.  Ins.  Co.,  57  Iowa.  529;  Goodgier  v. 
Finn,  10  Mo.  App.  226;  Botsford  v. 
Botsford.  49  Midi.  29;  Fisher  v.  Neil, 
6  F.  R.  89;  Zane  v.  Fink,  18  W.  Va. 
693;  Derry  v.  Ross,  5  Col.  295;  Hyde 


V.  Lamberson,  1  Idaho  (N.  S.)  539; 
Hayes  v.  Dayton,  18  Blatchf.  420; 
Bowen  v.  R.  R.,  17  S.  C.  572;  State  v. 
Rankin,  3  S.  C.  448;  Burris  v.  Whit- 
ner,  3S.  C.  512;  Powers  v.  McEachern, 
7  S.  C.  399;  Clement's  App.,  49  Conn. 
520;  Hussey  v.  Allen,  59  Me.  269; 
Marsh  v.  Snyder,  14  Neb.  8 ;  R.  R.  v. 
Redick,  14  Neb.  55;  Machine  Co.  v. 
Spears,  50  Mich.  534;  Clerk  v.  The 
Queen,  9  H.  L.  C.  184;  Kreigh  v. 
Sherman,  105  111.  49;  McMillan  v. 
Janrcs,  l65  111.  194;  Kirkpatrick  v. 
Alexander,  60  Ind.  95;  Lessing  v. 
Cunningham,  55  Tex.  231:  Ins.  Co. 
V.  Sorsby.  60  Miss.  302;  State  v.  Lowe, 
21  W.  Va.  782;  Pralt  v.  Stone,  10  111. 
App,  683;  Hearn  v.  Shaw,  72  Me.  187; 
Posey  V.  Green,  78  Ky.  162;  Pugh  v. 
White,  78  Ky.  210;  Easter  v.  Severin, 
78  Ind.  540;  Warner  v.  Lockerby,  28 
Minn.  28;  llurd  v.  Smith,  5  Col.  233; 
Mayes  v.  People,  106  III.  306:  State  v. 
Sheard,  35  La.  Ann.  543;  Montfort  v. 
Rowland,  38  N.  J.  E.  181;  State  v. 
Hicks,  20  S.  C.  341 ;  Moore  v.  McKin- 
ley,  20  S.  C.  341;  Dickiu-son  v.  Buskie, 
59  Wis.  136. 

'  Botkin  V.  Livingstone,  16  Kas.  39; 
Schwartz  v.  Ins.  Co.,  21  Minn.  215. 

•■'  Berks,  &c.  Co.  v.  ]\Ieyers,  6  S.  & 
R.  12;  R.^R.  Co.  V.  Morgan.  69  HI. 
492;  Evanston  v.  Guon,  99  U.  S.  660. 


Estoppel  in  Pais.  953 

must  have  a  place  in  every  well  constituted  forum.  If  at  law  a 
party  pleads  to  special  points,  neglecting  other  points,  he  acqui- 
esces in  the  pleadings  of  his  opponent  relating  to  the  points,  he 
does  not  contest,  and  so  here  and  so  everywhere.  If  a  party 
appeals  he  is  concluded  from  considering  points  not  covered  by 
his  appeal,  and  after  the  appellate  judgment  is  delivered  upon 
the  points  to  which  the  appeal  refers,  he  is  not  at  liberty  after- 
wards, in  a  future  proceeding  in  the  case,  either  on  circuit  or  in 
the  appellate  court,  to  claim  a  consideration  of  the  ground  he  has 
passed  over  and  lost.  A  party  who  brings  up  a  partial  appeal 
loses  every  ground  of  appeal  then  existing  which  he  neglects  and 
leaves  behind  him,  and  cannot  afterwards  stir  the  objections  lost 
by  his  supineness  or  acquiescence.*  Thus,  for  example,  a  person 
arrested  on  a  warrant  made  no  objection  to  the  sufficiency  of  the 
affidavit  on  which  the  warrant  was  issued,  nor  to  the  regularity 
of  the  arrest,  but  pleaded  tlie  general  issue  and  went  to  trial/ 
He  could  not,  on  special  appeal,  object  for  the  first  time  to  the 
affidavit,  even  though  no  arrest  could  be  founded  on  it.'^  So, 
where  a  party  fails  to  object  to  the  admissibility  of  papers,  deeds, 
&c.,  in  evidence,  he  cannot  raise  the  question  in  the  Supreme 
Court  on  an  appeal,  for  the  first  time.^     So  the  defendant  in  an 


1  Boyce  v.  Boyce,  6  Eich.  Eq.  302;  ShuJtz  v.  Lempert,  55  Tex.  273;  Read 

Hand  v.  R.  R.  Co.,  17  S.  C.  219;  Brit-  v.  Allen,  56  Tex.  182. 
ton  V.  Johnson,  Dud.  Eq.  28;  Baddely         ^Maxwell  v.   Deens,  46  Mich.  35; 

V.  Patterson,  78   Ind.  157;   Purdy  v-.  Smith  v.  Freeman,  71  Ind.  85;   Hahn 

Steel,  1  Idaho  (N.  S.)  216;  Brady  v.  v.  Behrman,  73  Ind.  120 
Seligman,  75  Mo.   31;  Smith  v.  Free-         ^  Springer  v.  U.  S.,  102  U.  S.   586; 

man,  71  Ind.  85;  Buckley  v.  Iron  Co.,  Decker  v.  House,  30  Kas.  614;  Hayes' 

77  Mo.  105;  Tierman  v.  Creditors,  62  v.  Walker,  90  Ind.  105;  State  v.  Riggs, 

Cal.   486;   Strueven   v.    Creditors,    62  92  Ind.  336;  Storm  Lake  v.  Ry.  Co., 

Cal.  45;  Wilson  v.  Kelly,  19  S.  C.  160;  62  Iowa,  218;  Manf'g  Co.  v.  Ruggles, 

State  V.  Lowe,  21   W.  Va.  182;  Ilahn  51    ]Mich.   474;  Barry  v.   Schmidt,  37 

V.  Behrman,  73  Ind.  120;  Springer  v.  Wis.    172;  R.  R.  Co.    v.   Chester,  63 

U.  S.,  102  U.  S.  586:  Simmons  v.  Sim-  111.  235;  McCarthy  v.  Neu,  91  111.  131; 

mons,  33  Gratt.  451;  Derham  v.  Lee,  Wickenkamp  v.  Wickeukamp,  '^7  111. 

47  N.  Y.  Super.  174;  Fletcher  V.  Men-  93;   Dowd  v.    Bank,  59   N.    H.  391; 

ken,  37  Ark.  206;  Noel  v.  Hagerhorst,  Sloothoff  v.  R.  R.,  32  Hun,  437;  Boom 

80  Ind.  430;  Express  Co.  v.  Smith,  57  Co.  v.  Boom  Co.,  110  U.  S.  57;  Evans 

Iowa.  242;  Treasurer  v.  Bunhury,  45  v.  Shroyer,   22  W.   Va.  581;  Frcibey 

Mich.  79;  Brown  v.  Brown,  28  Minn.  v.  Lome,    61   Tex.  436;   Knoxville  v. 

501;  Hinton  v.  Winsor,  2  Wyom.  206;  Bell,  12  Lea,157;  Nashville  v.  Thomp- 


954  The  Law  of  Estoppel. 

attachment  suit  cannot  object  for  tlic  first  time  in  tlie  appellate 
court  that  no  bond  was  filed  liy  the  plaintiff  before  the  issuing  of 
the  writ,  or  that  the  affidavit  was  insufficient.'  Questions  of 
irregularity  cannot  be  raised  for  the  first  time  in  the  appellate 
court,  after  the  trial  below  has  proceeded  without  ol>jection,  and 
the  merits  of  the  whole  controversy  have  been  passed  upon. 

So,  where  the  jury  were  taken  to  view  the  locus  in  qxio^  and, 
on  their  return,  the  defendant  and  counsel  on  both  sides  of  the 
case  rode  in  the  same  sleigh  with  the  jury  :  Ileld^  that,  as  plaint- 
iff made  no  objection  to  the  defendant's  thus  riding  with  the  jury 
at  the  time  when  he  might  have  prevented  it,  he  could  not  be 
heard  to  urge  it  afterwards  as  a  ground  for  setting  aside  the  ver- 
dict." So,  where  the  plaintiff  asked  the  Court  to  instruct  the  jury 
upon  a  point  of  law  not  relevant  to  the  issues  in  the  case,  he  cannot 
be  heard  to  complain  that  the  court  did  instruct  on  that  point ; 
neither  can  lie  be  heard  to  complain  that  such  instructions  did 
not  properly  state  the  law. 

§  825.  A  waiver  is  an  intentional  rellnquisliment  of  a  known 
right.'  Waiver  is  voluntary  and  implies  an  election  to  dispense  with 
something  of  value,  or  forego  some  advantage  which  the  party 
waiving  it  might,  at  his  option,  have  demanded  or  insisted  upon.* 
A  waiver  of  an  agreement  or  of  a  condition,  may  either 
be  by  word  of  iiioiitli.  or  it  may  arise  out  of  such  acts 
and  conduct  of  the  party  as  would  naturally  and  properly 
give  rise  to  an  inference  that  he  intends  to  waive  the  agreement 
or  condition.  A  waiver  takes  place  where  a  man  dispenses  with 
the  performance  of  something  which  he  has  a  right  to  exact.  A 
man  may  do  that  not  only  by  saying  that  he  dispenses  with  it, 
that  he  excuses  the  performance,  or  he  ma^'-  do  it  as  effectually  by 
conduct  which  naturally  and  justly  leads  the  other  party  to  believe 
that  he  dispenses  with  it.  There  can  be  no  waiver  unless  so 
intended   by  one  party  and  so  understood  by  the  other,  or  one 


son,  12  Lea,  344;  Bulkley  v.  Iron  Co.,  Brown  v.  Brown,  28  Minn.  501. 
77  Mo.  105  ;  Walker  v.  Owen,  79  Mo.  '  Kalm  v.  JMiller.  60  Iowa,  96. 

563.  ^  Lewis    v.    Plioenix,    &c.    Co.,  44 

'  Fletcher  v.  Menken,  37  Ark.  206;  Conn.  72. 
Express  Co.  v.  Smith,  57  Iowa,  242;         *  Warren  v.  Crane,  50  Mich.  800. 


Estoppel  ii!f  Pais.  955 

party  has  so  acted  as  to  mislead  tlie  other.'  There  arc  many  rights 
given  by  statute  such  as  a  right  to  plead  the  statute  of  limitations, 
a  right  to  claim  a  homestead,  trial  by  jury,  notice  of  nonpayment 
to  an  indorser,  &c.,  all  such  rights  are  known  rights,  that  is,  every 
one  is  presumed  to  know  the  law,  and  know  what  his  rights  are. 
Such  rights  may  be  insisted  upon  and  they  will  be  enforced  by' 
courts  ;  they  may  also  be  waived  by  the  party  entitled  to  the  bene- 
fits thereof,  and  when  waived  by  such  party  he  will  be  estopped 
from  setting  them  up  or  claiming  them,*  a  party  may  waive  a 
constitutional  aswell  as  a  statutory  provision  for  his  benefit  as  a 
trial  by  jury,  though  that  mode  is  guaranteed  to  him  by  the  con- 
stitution. 

The  general  rule  is,  that  no  contract  or  agreement  can  modify 
a  law,  but  the  exception  is,  that  where  no  principle  of  public 
policy  is  violated,  parties  are  at  liberty  io  forego  the  protection 
of  the  law.  Statutory  provisions  designed  for  the  benefit  of 
individuals,  may  be  waived,  but  where  the  enactment  is  to  secure 
general  objects  of  policy  or  morals,  no  consent  will  render  a  non- 
compliance with  the  statute  eifectual,  A  statute,  limiting  a  time 
within  which  action  shall  be  brought,  is  for  the  benefit  and  repose 
of  individuals  and  not  to  secure  general  objects  of  policy  or 
morals.  Its  protection  niay,  therefore,  be  waived  by  those  who 
assent  in  legal  form,  and  when  acted  upon,  such  waiver  becomes 
an  estoppel  to  ple-^d  the  statute.  A  defendant  who  has  agreed 
not  to  set  up  the  statute  of  limitations,  shall  not  be  allowed  to 
do  it;  such  agi-eement,  although  it  does  not  amount   to  a  new 

1  Trotlinger  v.  R.  R.  Co.,  11  Lea,  Mass.  307;  Lee  v.  Tillotson,  24  Wend. 

533.  337;  Ferguson   v.   Landrau,  5  Bush, 

«  Embury  v  Connor,  3  N.  Y.  511;  230;  Howland  v.  Sheriff,  5  Sandf.  219; 
Lyman  v.  Littleton,  50  N.  H.  42;  Page  Wilson  v.  Kelly,81  Pa.  St.  411;  Mayes 
V.  Pendergrait,  2  N.  H.  235;  State  v.  v.  Jacoby,  8  S.  &  R.  526;  Shank  v. 
Richmond,  '36  N.  H.  245;  Sargent  v.  Warfel,  14  S.  &  R.  205;  Craig  v.  Bar- 
Graham,  2  :>!"•  H.  335;  Mathewson  v.  clay,  48  Pa.  St.  202;  Cooper,  in  re,  93 
P.  Work,  44  N.  H.  291;  Smart  v.  N.  Y.  512;  Sterling  v.  Sterling,  35 
R.  R.  Co.,  20  N.  H.  233;  Flint  v.  La.  Ann.  840;  Bank  v.  Ewiiig,  21  W. 
Clinton  C^-,  12  N.  H.  437;  Wood  v.  Va.  208;  Harris  v.  Brown,  93  N.  Y. 
Davis,  34  J-"^.  H.  34;  King  v.  Hutchins,  390;  Gilmore  v.  Gilmore,  4  McArth. 
26  N.  H.  139;  McNeil  v.  Call,  19  N.  806;  Folger  v.  Palmer,  35  La.  Ann. 
H,  403;  Shutesbury  v.  Oxford,  16  743;  Collins  v.  Ball,  31  Hun,  187; 
Mass.  102;  Embden  v.    Augusta,  12  Perkins  v.  Jones,  62  Iowa,345;  Craigin 

v.  Lovell,  109  U.  S.  194. 


95G  The  Law  of  Estoppel. 

promise,  M'ill  operate  by  way  of  estoppel,  in  cases  where  the  stat- 
ute has  not  fully  run,  and  the  plaintiff  forebore  to  sue  in  conse- 
quence of  the  promise.* 

§  826.  There  has  been  considerable  question  made  in  regard 
to  the  right  of  a  prisoner  to  waive  his  right  of  trial  by  J^ny.  In 
a  case  where  the  jury  was  composed  of  twelve  men,  during  the 
trial  one  of  the  jury  was  taken  sick,  and  he  was,  with  the  con- 
sent of  the  defendant,  discharged,  and  by  the  order  of  the  court 
and  the  consent  of  the  defendant,  the  trial  was  resumed  before 
eleven  juroi-s,  Avho  found  the  defendant  guilty.  On  appeal  to 
the  Supreme  Court  of  Iowa,  in  construing  the  statutory  and  con- 
stitutional provision,  "the  jury  consists  of  twelve  men,  accepted 
and  sworn  to  tvy  the  issue."  "  The  right  of  trial  by  jury  shall 
remain  inviolate,  b.-t-  no  person  shall  be  deprived  of  life,  liberty 
or  property  without  due  process  of  law."  The  courts  say  these 
provisions  have  equal  force.  If  one  can  be  waived,  so  may  the 
other.  Thus,  where  the  defenCant  knew  at  the  time  the  jury  is 
sworn  that  some  of  them  were  nw,  qualified  to  act  as  jurors,  he 
waives  his  right  to  object  thereafter.  It  is  well  settled  in  regard 
to  jurors,  that  all  challenges  or  objections  to  their  competency, 
must  be  made  before  the  verdict,  such  .g  proper  age,  prejudice, 
that  they  were  not  legally  drawn,  or  othe>  disqualifications;  or 
they  are  waived,  although  the  party  was  no-,  aware  of  the  fact 
prior  to   the   rendition   of    the   verdict.'     As  where  a    juror  is 

1  Cowart  V.  Pcrrine,  21  K  J.  Eq.  121  Mass.  93;  Rex  ^  Sutlon,  8  B. 
101;  Gaylordv.  Van  Loan,  15  Wend.  &  C.  417;  Johns  ^  Hod<n's,  60 
308;  Bioodgood  V.  Ins.  Co.,4  Wend.  Md.  215;  S.  C,  45^,^^  ^  '241. 
653;  Quick  V.  Corlios,  39  N.  J.  L.  11;  State  v.  Beascly,  32  -.a.  An.  1162; 
Rawdon  v.  Toby,  11  How.  493;  War-  Moody  v.  Griffin,  65  Ga  304.  Q^^^^,  y' 
ren  v.  Walker.  23  Me.  453;  Webber  Ward,  74  Mo.  253;  State  ^  Jackson, 
V.  College,  23  Pick.  302;  Ilodgdon  27  Kas.  581;  S.  C,  41  Vm.  K.  424*; 
V.  Chase.  29  Me.  47;  Lade  v.  Trill,  Hickey  v.  State,  12  Neb.  jqq.  i3o,^,(j'. 
6  Jur.  272;  W^aters  v.  Earl,  &c.,  2  A.  dille  v.  State.  53  Wis.  68C  people  v. 
&  E.  757.  Mortier,  58  Cal.  252;  State^,  Belcher^ 

2  Queen  v.  Hepburn,  7Cranch,  200;  13  S.  C.  459;  State  v.  Bowf^,,^  71  Mo.' 
HoUiugsworth  v.  Duane,  4  Dall.  353;  £9;  Pier.son  v.  People,  79  1-  y.  424- 
Amherst  v.  Hadley,  1  Pick.  38;  Peo-  S.  C,  35  Am.R.  524;  Osgood^  gj.^'^^,' 
pie  V.  Jewell,  6  Wend.  380;  U.  S.  v.  63  Ga.  791;  Poindexter  v.  C^mjion'- 
Baker,  3  Ben.  68;  Gorudey  v.  Lara-  wealth,  33  Gratt.  1166;  Teri^^  ^ 
more,  40  Ga.  253;  "Wassum  v.  Feeney,  Aberta,  1  N.  Mex.  545;  Manf.^^^    y 


Estoppel  in  Pais. 


957 


accepted  without  objection,  knowing  him  to  have  formed  and 
expressed  an  unqualified  opinion,  the  question-  cannot  be  raised 
as  to  his  disqualification,  after  the  rendition  of  the  verdict.'  Or 
where  an  alien  is  exempt,  or  one  is  incapacitated  by  over  age.' 
Failing  to  demand  a  jury  trial  waives  it.'  So,  an  agreement  that 
a  jury  may  deliver  a  sealed  verdict  waives  the  right  to  poll  the 

§  827.  "  The  defendant  in  a  criminal  case  by  silence  may  waive 
the  benefit  of  a  statutory  provision  f  and  the  courts  say  it  must 
therefore  be  regarded  as  the  settled  doctrine  in  this  State  that  a 
defendant  in  a  criminal  action,  with  the  consent  of  the  State  and 
court,  may  waive  a  statute  enacted  for  his  benefit.  Speaking  of 
the  constitutional  provision  that  the  right  of  trial  by  jury  shall 
remain  inviolate,  the  court  said  the  jury  provided  foi*  by  that 
2)rovision,  "It  is  conceded  to  consist  of  twelve  persons,  but  the 
question  is,  can  a  defendant  in  a  criminal  case,  with  the  consent 
of  the  State  and  of  the  court,  waive  such  constitutional  provision 


Etberidge,  63  Ga.  568;  State  v.  Rob- 
inson, 71  Mo.  446;  Kenrick  v.  Rep- 
pard,  23  Ohio  St. 333;  State  v.  Groom, 
10  Iowa,  308;  State  v.  Powers,  10 
Oreg.  145;  S.  C,  45  Am.  R.  138;  U. 
S.  V.  Gall,  109  U.  S.  65;  Cannon  v. 
State,  3  Tex.  34;  People  v.  Rathbun, 
21  "Wend.  54;  State  v.  Jones,  7  Nev. 
413;  Cancemi  v.  People,  18  N.  Y. 
137;  State  V.  Mix,  15 Mo.  113;  Beebee 
V.  People,  5  Hill,  33;  Stephens  v. 
People,  19  N.  Y.  553;  Hill  v.  State,17 
Wis.  575;  State  v.  Poison,  29  Iowa, 
133;  People  v.  Lightner,  49  Cal..  228; 
Pfeiffer  v.  Commonwealth,  15  Pa.  St. 
470;  Bulliner  v.  People,  95  111.  394; 
New  V.  Hardy,  46  Ga.  617;  State  v. 
Russell,  33  La.  Ann.  135;  Paulitsch  v. 
R.  R.  Co.,  50  N.  Y.  Super.  Ct.  241; 
State  V.  Thomas,  35  La.  Ann.  24; 
State  V.  White,  35  La.  Ann.  96;  State 
V.  Sopher,  35  La.  Ann.  975;  Casat  v. 
State,  40  Ark.  511;  U.  S.  v.  Gale,  109 
U.  S.  65;  Lee  v.  State,  69  Ga.  705; 


Flesher  v.  Hall,  22  W.  Va.  44. 

1  State  V.  Anderson,  4  Nev.  266; 
Kingen  v.  State,  46  Ind.  133;  Gillooley 
V.  State,  58  Ind.  182;  Croy  v.  State, 
32  Ind.  384;  State  v.  McClear,  11  Nev. 
53;  State  V.  Rigg,  10  Nev.  284;  State 
V.  Borrow  sky,  11  Nev.  127;  People  v. 
Stonecifcr,  6  Cal.  405;  State  v.  Fisher, 
2  N.  &  McC.  204;  Brown  v.  State,  52 
Ala.  345;  Keener  v.  State,  18  Ga.  215; 
Gardiner  v.  People,  6  Park  C.  R.  195; 
State  V.  Tuller,  34   Conn.  280. 

^  HoUingsworth  v.  Duane,  4  Dall. 
330;  State  v.  Quarrell,  2  Bay.  150; 
State  V.  Vogel.  22  Wis.  471;  Turner 
V.  Hahn,  1  Col.  28;  Williams  v.  State, 
37  Miss.  407. 

3  Foster  v.   Morse,  132  Mass.  354. 

*  Koon  v.  Ins.  Co.,  104  U.    S.  106. 

5  State  V.  Groom,  10  Iowa,  308; 
State  V.  Kaufman,  51  Iowa,  578;  S. 
C.,33  Am.  R.  148;  Hughes  v.  State,  4 
Iowa,  554;  State  v.  Ostrander,  18 
Iowa,  535;  State  v.  Reid,  20  Iowa, 
413;  State  v.  Felder,  25  Iowa,  67. 


958  The  Law  of  Estoppel. 

and  be  bound  tbercby?  Tlie  first  impression  would  be  that  a 
constitutional  provision  can  be  waived  as  well  as  a  statutorj^  one. 
In  regard  to  criminal  proceedings,  the  statute  establishing  a  jury 
of  twelve  men,  and  the  constitutional  provision  that  the  right  of 
jury  trial  shall  be  inviolate,  were  enacted  for  the  benefit  and  pro- 
tection of  persons  charged  with  crime.  Both  have  equal  force, 
and  if  one  can  be  waived  the  other  may  be."  A  conviction  can 
only  be  legally  obtained  in  a  criminal  action  upon  competent 
evidence ;  yet  if  the  defendant  fail  at  the  proper  time  to  object 
to  such  evidence  as  is  incompetent,  he  cannot  afterwards  do  so. 
He  has  a  constitutional  right  to  a  speedy  trial,  yet  he  may  waive 
this  provision  by  obtaining  a  continuance.  He  may  plead  guilty, 
which  generally  dispenses  with  a  jury  trial,  and  it  is  thereby 
waived.  It  would  seem  that  this  effectually  destroys  the  force 
of  the  thought  that  the  State  has  an  interest  in  the  preservation 
of  the  lives  and  the  liberties  of  the  citizens,  and  will  not  allow 
them  to  be  taken  away  without  due  process  of  law.  Due  process 
of  law  has  been  defined  by  the  Supreme  Court  of  the  United 
States,  and  other  tribunals  of  last  resort,  to  be  the  law  which 
hears  before  it  condemns ;  which  proceeds  upon  inquiry,  and 
renders  judgment  only  after  trial.  The  meaning  is  that  any  citi- 
zen shall  hold  his  life,  liberty,  property  and  immunities  under 
the  protection  of  general  rules  which  govern  society.  It  means 
a  trial,  and  a  trial  involves  the  riglit  of  both  parties  to  produce 
evidence.  In  a  prior  portion  of  this  work,  under  the  head  of 
jurisdiction,  the  question  as  to  what  is  due  process  of  law  will  be 
found  to  have  been  fully  examined.  In  Blackstone  it  is  said  that 
the  King  has  an  interest  in  the  preservation  of  all  his  subjects.' 
"  It  matters  not  whether  defendant  is  in  fact  guilty,  the  plea  of 
guilty  is  just  as  effectual  as  if  such  was  the  case.  Reasons  other 
than  the  fact  that  he  is  guilty  may  induce  a  defendant  to  so 
plead,  and  thereby  the  State  may  be  deprived  of  the  services  of 
the  citizen,  and  yet  the  State  never  actively  interferes  in  such 
case.  The  right  of  the  defendant  to  so  plead  has  never  been 
doubted.  He  must  be  permitted  to  judge  for  himself  in  this 
respect." 

§  828.  And  the  court  further  say,  in  respect  to  the  trial  by 
» 4  Blacks.  189. 


Estoppel  In  Pais,  959 

the  eleven  jurors  :  "  The  defendant  may  have  consented  because 
his  witnesses  were  tliere  present,  and  he  might  not  be  able  to  get 
them  again,  or  that  it  was  best  he  should  be  tried  by  tlie  jury 
thus  constituted."  Why  should  ho  not  be  permitted  to  do  so? 
Why  hamper  him  in  this  respect?  Whj'  restrain  his  liberty  or 
right  to  do  as  lie  believed  to  be  for  hisinterests  ?  Whatever  rule 
is  adopted  not  only  affects  the  defendant,  but  all  others  similarly 
situated,  no  matter  how  much  they  desire  to  avail  themselves  of 
the  right  to  do  what  the  defendant  desires  to  repudiate.  We  are 
unwilling  to  establish  such  a  rule.  It  may  be  said  that  if  one 
juror  may  be  dispensed  with,  so  may  all  but  one,  or  that  such 
trial  may  be  waived  altogether,  and  the  trial  had  to  the  court. 
This  does  not  necessarily  follow.  It  will  be  time  enough  to 
determine  such  questions  when  they  arise.  Certain  it  is  that  the 
right  to  dispense  with  one  or  more  jurors  cannot  be  exercised 
without  the  consent  of  the  court  and  State,  and  it  may  safely,  we 
think,  be  left  to  them  as  to  when  or  to  what  extent  it  may  be 
exercised.  We,  however,  may  remark,  without  committing  our- 
selves thereto,  that  it  is  difficult  to  see  why  a  defendant  may  not, 
with  the  consent  of  the  court  and  the  State,  elect  to  be  tried  by 
the  court.  Should  such  become  the  established  rule,  many 
changes  of  venue,  based  on  the  prejudice  of  the  inhabitants  of 
the  county  against  the  defendant,  might  be  obviated. 

§  829.  "A  contrary  rule  has  been  maintained  in  some  of  the 
States,  based  on  the  idea  that  *it  would  be  a  highly  dangerous 
innovation,'  in  reference  to  criminal  cases,  upon  the  ancient  and 
invaluable  institution  of  trial  by  jury,  and  the  constitution  and 
law  establishing  and  securing  that  mode  of  trial,  for  a  court  to 
allow  of  any  number  short  of  a  full  panel  of  twelve  jurors,  and 
should  not  be  tolerated.' 

"But  why  it  would  be  'highly  dangerous'  and  should  'not 
be  tolerated  '  is  not  shown  by  these  cases,  and  if  it  were  so,  it 
certainly  would  not  be  ditiicult  to  give  a  satisfactory  reason  in 
support  of  the  strong  language  used.''  In  another  case  a  verdict 
was  rendered  by  thirteen  jurors;  it  was  set  aside,  but  it  does  not 


I  Cancemi  v.  People.  18  N.  Y.  128;         «  State  v.  Kaufman,    51   Iowa,  578; 
Allen   V.  State,    54   Ind.   461;  Bell  v.      S.  C,  33  Am.  R.  148. 
State,  44  Ala.  393. 


9G0  The  Law  of  Estoppel. 

appear  wlietlier  the  defendant  had  any  knowledge,  until  after  the 
verdict,  that  there  was  that  number  of  jurors.'  In  another  case, 
a  jury  trial  was  waived  and  a  defendant  found  guilty  by  the  court. 
On  appeal,  the  attorney-general  submitted  to  a  reversal  on  the 
ground  that  a  jury  trial  could  not  be  waived.  The  case  was  dis- 
posed of  by  the  coui't  in  a  single  line,  by  saying  such  was  the 
opinion  of  the  court.  It  is  evident  that  that  case  \vas  not  very 
elaborately  considered."  The  same  principle  has  been  held  in 
the  following  cases.'" 

§  830.  In  Iowa  where  the  constitution  provides  that  "  in  an 
criminal  prosecutions,  the  accused  shall  have  the  right,  to  be  con- 
fronted with  witnesses  against  him  ;"  in  a  case*  it  was  agreed  in 
open  court,  between  the  district-attorney  and  counsel  for  the 
defendant,  in  the  presence  of  the  defendant  and  of  the  jury,  that, 
in  order  to  save  time  and  facilitate  the  trial  of  the  cause,  the 
testimony  taken  upon  a  former  trial  should  be  read  to  the  jury 
as  a  substitute  for  the  oral  testimony  of  the  witnesses  in  court. 
A  conviction  followed,  which  was  held  to  be  right,  and  that  the 
constitutional  provision  was  a  personal  right,  and  in  no  nnmner 
affected  the  jurisdiction  of  the  court,  and  that  it  might  be  waived. 
This  decision,  in  principle,  is  identical  with  the  case  of  the  State 
V.  Kaufman,  sujyra.  If  one  constitutional  provision  may  be 
waived,  why  not  another  ?  The  one  is  not  n)ore  binding,  or 
obligatory  than  the  other.  Both  are  equally  important.*  Thus 
it  is  held  that  one  accused  of  a  crime  may  waive  his  right  to  a 
trial  by  jury  and  elect  to  be  tried  by  the  court.'  And  a  party 
may  waive  a  trial  by  confes^-ion  of  judgment  or  plea  of  guilty.^ 

§  831.  The  Supreme  Court  of  the  United  States  in  a  late  case 
said  :  "  Where  a  defendant  pleads  not  guilty  to  an  indictment, 
and  goes  to  trial  without  making  objection  to  tiie  mode  of  select- 

'  Bullaid  V.  Stiite,  38  Tex.  504.  S.  C,  33  Ara.R.  148;  Coinraouvvealth 

s  Williuins   V.    Slate,    12    Ohio   St.  v.  Ehiiley,    13  Cush.   80;    JMurphy  v. 

632.  Coninionwealth,    1    Met.    (Ky.)    365; 

»  Bond  V.  State,  17  Ark.  390;  People  Tyra    v.      Commonwealth,    3     Met. 

V.  Smith, 9  Mich.  193;  League  v.  State,  (Ky.)  1. 
86  Mel.  259.  « State  v.  White,  38  La.  Ann.  1318; 

♦  State  V.  Poison,  29  Iowa,  133.  Slate  v.    Askins,  33   La.  Ann.  1253; 

»  State  V.  Kaufman,  51  Iowa,  578;  State  v.  Touohet,  33  La.   Ann.  1154. 

'  New  V.  Hardy,  46  Ga.  617. 


Estoppel  in  Pais.  961 

ing  the  grand  jury,  the  objection  is  waived  ;  even  though  a  law 
unconstitutional,  or  assumed  to  be  unconstitutional,  may  be  fol- 
lowed in   making  the  panel.     We  think   that  the   doctrine    of 
waiver  ap}3lies  as  well  to  cases  where  the  objection  appears  of 
record  as  where  it  appears  by  averments  ;  and  that  it  applies  to 
all  cases  of  objection  to  the  qualifications  of  jurors,  and  to  the 
mode  of  impaneling  the  jury  ;  but  does  not  apply  to  cases  where 
the  proceeding  is  wholly  void  by  reason  of  some  fundamental 
defect  or  vice  therein.*     In  the  case  in  Brooke,  persons  not  legali 
homines  were  on  the  grand  jury,  and  it  was  held  that  the  objec- 
tion ought  to  be  pleaded  before  pleading  to  the  felony.     In  Sea- 
born's  Case,  it  was  held,  that,  after  conviction  of  murder,  it  was 
too  late  to  take  advantage  of  an  error  in  constituting  the  grand 
jury,  though  it  appeared  in  the  record.     In  Robinson's  Case, 
which  was  argued  by  able  counsel  in  the  Supreme  Court  of  New 
York  before  Justices  Parker,  Wright  and  Harris,  no  precept  for 
summoning   the   grand    jury    had    been    issued    by  the   district- 
attorney  to  the  sheriff,  as   the   law  required,  though  the  sheriff 
summoned   them   in   the  usual  way.     The   court  held,  that   this 
omission  did  not  affect  the  substantial  rights  of  the  prisoner,  and 
that  the  objection  could  not  be  raised  after  trial  and  conviction.^ 

§  832.  The  maxim  Quillhet  potest  reriunoiare  juri  pro  se 
indueto,  is  applicable  and  is  regarded  as  one  of  the  fundamental 
doctrines  of  equitable  estoppel.  Statutory  provisions  and  also 
constitutional  ones,  as  a  general  rule,  when  designed  for  the  bene- 
fit of  individuals  may  be  waived.^     Thus,  the  statutory  right  of 

»  Brooke's  Abr.  Indict.  2;  Seaborn's  308;  Bloodgood  v.  Ins.  Co.,  4  Wend. 

Case,  4  Dev.  305;  Kobinson's  Case,  2  652;  Rawdon  v.  Toby,  11  How.  493; 

Park.  C.  C.  308.  Warren  v.  Walker,  23  Me.  453;  Weber 

""  United  States  v.  Gale,  109  U.  S.  73.  v.    College,     23    Pick.    302  ;     Hodg- 

"Leighlou  v.  Grant,  20  Minn.  345;  don  v.    Chase,   29  Me.    47;   Lade  v. 

Bray  v.  Kedman,  6  Cal.  287;  Edwards  Trill,  6  Jur.  272;  Waters  v.  Earl,  2  A. 

V.  Duling.  36  111.  35;  Buel  v.  Trustees,  &  E.  757;  Mullen  v.  Harding,  12  La. 

3  N.  Y.  197;  Toombs  v.  R.  R.  Co.,  18  271;   Vilas   v.  Reynolds,  6  Wis.  214; 

Barb.    583;  Morrison  v.  Underwood,  Sowle  v.  Pollard,    14    La.  Ann.  287; 

SCush.  52;  Markham  V.  Sandford,  14  Ale.xander    v.    Miller,     18    Tex.  893; 

C.  B.  (N.  S.)  376;   Elkins   v.  Sams,  3  Chambers  v.    Hays,   6    B.   Mon.   115; 

Hayw.    44;   D'lvernois   v.  Leavitt,  8  Ricliardsou  v.   Ingilby,  13  Rich.  Eq. 

Abb.  Pr.  59;  Quick  v.  Corlies,  39  N.  59;  Casey  v.  Gregory,  13  B.  Mon.  507; 

J.  L.  11;  Cowart  v.  Perriuc;  21  N.  J.  New  Orleans  v.  Bagley,  19  La.  Ann. 

E.  101;Gaylordv.  Vanloaa,  15  Wend.  158;  Russell  v.  Stinson,  3  Hey.  1; 
Vol.  I.— 61 


962 


The  Law  of  Estoppel. 


exemption  may  be  waived  the  right  given  to  plead  the  statute  of 
limitations,  usury,  &c.  The  right  to  trial  by  jury  in  civil  causes 
when  once  waived  by  a  party,  he  is  estopped  from  claiming  the 
benefit  of  such  statutory  rights. 

§  833.  The  right  of  exemption  is  an  incident  of  ownership  as 
long  as  the  owner,  who  is  an  inhabitant  of  the  State,  chooses  to 
exert  it,  and  if  the  property  is  within  the  control  of  the  court  it 
exists.  In  order  to  claim  and  derive  the  benefit  of  the  statute, 
the  debtor  must  briug  himself  and  his  property  within  its  pro- 
visions, and  prove  the  facts  affirmatively.'  Being  a  statutory 
privilege  of  which  the  debtor  alone  can  avail  himself,  he  may,  if 
he  chooses,  waive  it,  and  allow  a  levy  and  sale  of  his  exempt 
property.*  It  is  held,  that  where  the  husband  waives  the  right  of 
homestead  his  waiver  will  bind  his  family,  and  his  wife  as 
effectually  as  if  she  had  joined  in  it.' 

§  834.  All  the  preliminary  steps  prior  to  the  sale  of  property 
on  execution  should  be  performed  in  strict  accordance  with  the 
requirements  of  the  statute,  the  formalities  of  the  law  may  be 


Lewis  V.  Ins.  Co.,  44  Conn.  72;  King 
V.  Ilutcbings.  26  N.  H.  139;  Lee  v. 
Tiliotsou.  24  Wend.  337;  Bankv.  Sw- 
ing, 21  W.  Ya.  208. 

'  Calhoun  v.  Knight,  10  Cal.  393; 
Briggs  V.  McCuilough,  36  Cal.  542; 
Griffin  v.  Sutherland,  14  Barb.  456; 
Davenport  v.  Alston,  14  Ga.  271; 
Line's  Appeal,  2  Grant  Cas.  197; 
Davis  V.  Prosser,  32  Barb.  290;  Tuttle 
V.  Buck,  41  Barb.  417;  Hill  v.  John- 
son, 29  Pa.  St.  362;  Corp  v.  Griswold, 
27  Iowa,  379;  Swan  v.  Stephens,  97 
Ma.«s.  7. 

-  Simpson  v.  Simpson,  30  Ala.  225; 
Simmons  v.  Anderson,  56  Ga.  53; 
Bowman  v.  Smiley,  31  Pa.  St.  225; 
Line's  Appeal,  2  Grant's  Cas.  197; 
Beegle  v.  Weiitz,  55  Pa.  St.  359; 
Chamberlain  v.  Lyell.  3  3Iioh.  448; 
Lauck's  Appeal,  24  Pa.  St.  426;  Case 
V.  Dunmore,  23  Pa.  St.  93;  State  v. 
Melogue,    9    lud.     196;    Mickles    v. 


Tousle}^  1  Cow.  114;  Earl  v.  Camp, 
16  Wend.  562;  Smith  v.  Hill,  6  Barb. 
656;  Smiley  v.  Bowman,  3  Grant's 
Cas.  132;  Butt  v.  Green,  29  Ohio  St. 
667;  Close  V.  Sinclair,  38  Ohio  St.  531; 
Angell  V.  Johnson,  51  Iowa,  625;  S. 
C,  33  Am.  152;  Simons  v.  Anderson, 
56  Ga.  53;  Gresham  v.  Walker,  10 
Ala.  370;  Smith  v.  Shepheard,  63  Ga. 
454;  Bowen  v.  Bowen,  55  Ga.  183; 
Bell  V.  Davis,  42  Ala.  460;  Jackson  v. 
Parrott,  67  Ga.  210;  Martin  v.  Lyle, 
63  Ala.  406;  Henderson  v.  Tucker,  70 
Ala.  381;  William's  Appeal,  92  Pa.  St. 
69;  Cromwell  v.  McConkey,  5  Pa.  St. 
168;  McCleary  V.  Faber,  6  Pa.  St.  476; 
Overton  v.  Tozier,  7  Watts,  337;  Stock, 
well  V.  Byrne,  22  Ind.  6;  Wray  v. 
Miller,  20  Pa.  St.  Ill;  Lessee  v.  Par- 
ish. 3  Ohio,  187. 

S.Jackson  v.  Parrott,  67  Ga.  210; 
Bowen  v.  Bowen,  55  Ga.  183;  Smith 
V.  Shepherd,  63  Ga.  454;  Simons  v. 
Anderson,  56  Ga.  53. 


Estoppel  in  Pais.  963 

waived  by  either  party,  as  far  as  they  affect  his  personal  interests. 
"  Quilibet potest  renunciare  juri ])ro  se  inductoP'^  Tlie  general 
rule  is,  that  a  sale  without  appraisement  is  void,"  unless  waived, 
and  only  the  absolute  owner  can  waive  it.^ 

§  835,   Consensus  tollit  erroretn  is  a  maxim  of  the  common 
law,  and  the  dictate  of  common  sense.     The  consent  which  cures 
error  in  legal  proceedings,  may  be  implied  as  well  as  expressed  ; 
for  instance,  where,  at  the  trial  of  a  cause  a  proposal  was  made 
by  the  judge,  in  the  presence  of  the  counsel  of  both  sides,  who 
made  no  objection,  that  the  jury  should  assess  the  damages  con- 
tingently, with  leave  to  the  plaintiff  to  move  to  enter  a  verdict 
for  the  amount  found  by  the  jury,  both  parties  were  bound  by 
the  proposal,  therefore  the  plaintiff's  counsel  was  not  at  liberty 
to  move  for  a  new  trial  on  the  ground  of  misdirection,*  quitaoet 
consentire  videtur,  *  the  silence  of  counsel  implied  their  assent  to 
the  course  adopted  by  the  judge,  and  "  a  man  who  does  not  speak 
when  he  ought,  shall  not  be  heard  when  he  desires  to  speak."" 
Where  the  parties  in   an  action  before  a   justice  of  the  pease, 
stipulate  that  the  justice  ma}'  take^ve  days  to  render  judgment, 
they  will  be  estopped  from  alleging  as  error  that  the  judgment 
was  rendered  on  the  fifth  day  instead  of  on  the  fourth  day."     A 
party  entering  into  a  stipulation  in  the  trial  of  a  cause,  that  the 
counter-claim    set   up    by    the    defendant    shall    be  withdrawn 
"  without  prejudice  to  the  defendant's  right  to  maintain  an  action 
thereon  against  the  plaintiffs,"  is  estopped  from  using  the  record 
as  evidence  in  bar  of  an  action  subsequently  brought  on  the  sub- 

'  Mullon  V.  Harding,   13  La.    271;  53;    Booth  v.    Clive,    10    C.    B.  827 

Vilas  V.  Reynolds,  G  Wis.  214;  Sowle  Hughes  v.  Railway  Co.,  14  C.  B.  637 

V.  Pollard,  14  La.  287;  Alexander  v.  Harrison  v.  Wright,  13  M.  &  W.  816 

Miller,    18  Tex.    893;    Chambers    v.  Crump    v.     Thomas,    85  N.    C.  282 

Hays,  6  B.  Monr.  115;  Richardson  v.  Shultzv.  Lempert,  55  Tex.  273;  Lind- 

lugilby,   13   Rich.    Eq.   59;  Casey  v.  say  v.  People,    1    Idaho,    N.   S.  438; 

Gregory.    13  B.  Monr.    509;  New  Or-  State  v.  Lowe,  21  W.  Va.  782. 
leans  v.  Bagley,  19  La.  158;  Russell  v.  *  Jenk.  Cent.  32;  Gosling   v.  Veley, 

Stinson,  3  Hey.  1;  Bank  v.  Ewiug,  21  7   Q.  B.  455;  Taft   v.  Northern,   &c. 

W.  Va.  208.  Co.,  56  N.  H.  414. 

MVray  V.  Miller,  20Pa.  St.  111.  «  Martin  v.    R.   R.,  16  C.    B.   179; 

3  Pepper  v.  Copeland,  2  Miles,  419.  Child  v.  Roe,  1  E.  &  B.  279;   Stracy 

*  Morrish  v.   Murray,  13  M.  &  W.  v.  Blake,  1  M.  &  W.  168. 

■!  Barnes  v.  Badger,  41  Barb.  98. 


964  The  Law  of  Estoppel. 

ject  of  such  counter-claim.'  Agreeing  to  a  fact  in  a  case  stated, 
wliicli  the  other  party  would  have  been  estopped  to  assert,  is 
a  waiver  of  such  estoppel.  A  stipulation  by  the  attorney  on" 
record,  to  admit  certain  facts  upon  the  trial  of  the  cause  is  con- 
clusive. Admissions  made  at  the  trial  of  a  cause  shall  be  taken 
as  conclusive  in  that  cause.  In  trespass  de  honis,  &c.,  the 
plaintilFs  counsel  disavowed  claiming  any  damages  by  way  of 
punishment  or  smart  money;  and  the  court  held  that  this  con- 
cluded him.' 

§  836.  There  is  still  another  class  of  judicial  or  solemn  admis- 
sions which  have  the  binding  effect  and  force  of  an  estoppel,  and 
that  is,  by  payment  of  money  into  court.^  Here  the  defendant 
conclusively  admits  that  he  owes  the  amount  thus  tendered  in 
payment  ;  that  it  is  due  for  the  cause  mentioned  in  the  declara- 
tion ;*  that  the  plaintiff  is  entitled  to  claim  it  in  the  character  in 
which  he  sues  ;^  that  the  court  has  jurisdiction  of  the  matter;' 
that  the  contract  described  is  rightly  set  forth,  and  was  duly 
executed  ;'  that  it  has  been  broken  in  the  manner  and  to  the 
extent  set  forth,  and  to  the  extent  declared,*  and  if  it  was  a  case 
of  goods  sold  by  sample  tliat  they  agreed  with  the  sample.*     In 

1  Foster  v.  Milliner,  50  Barb.  385;  Smith,  2  H.  Black  374;  Walkins  v. 
Kalin  V.    Zimmerman,  34   lov.a,  544.  Tower,  2  T.  R.  275,  Yate  v.  William, 

2  Wbeeldck  v.  Henshaw,  19  Pick.  2  East,  128;  Rjbbans  v.  Cricket,  1 
341;  Bunk  v.  Warrington,  40  Iowa,  Bos.  &  P.  264;  Clarke  v.  Gray,  6  East, 
528;  Hall  v.  Johnston,  90  111.  604;  564;  Story  v.  Finnis,  6  Exchq.  123; 
Dahlnian  v.  Foster,  55  Wis.  382.  Lyster  v.    Odium,  1   Ir.  L.  K.  N.  S. 

^  Boyden   v.    Moore,    5    Mass.  364;  52. 

Blackburn  V.  Sholes,   2   Campb.  341;  Libscombe  v.  Holmes,   2   Campb. 

Rucker  v.  Palsgrave,  1  Taunton,  419;  441. 

Beach  v.  Jeffrey,  1  111.  App.  283.  «  Miller  v.  Williams,  5  Esp.  19. 

*  Huntington  v.  Bank,  6  Pick.  340;  ''  Guttridge  v.  Smith,  2  H.  Black. 

Bennett   v.  Francis,  2   B.    &  P.  550;  374;  Israel   v.    Benjamin,    3   Campb. 

Seatou   V.  Benedict,  5  Bing.  28;  Mou-  40;  Cox   v.   Brain,  3  Taunt.  95;  Ran- 

roe  v.  Chaldeck,  78  111.   429;   Eaton  dall  v.  Lynch,  1  Camp.  352;  Stapleton 

V.  Wells.  82   N.  Y.   576;  Bingham  v.  v.  Norvell,  6   M.    &  W.  9;  Perren  v. 

Roberts,  1  M.  &  Gr.  876;  Bei-klieimer  R.   R.,    11   C.    B.    853:  Middle! on  v. 

V.    Geisc,    82    Pa.    St.    64;   Jones    v.  Brewer,  Peake,  15. 

Hoare,  5  Pick.  285;  Elliott  v.  Callow,  »  Uyer  v.  Ashton,  1  B.  &  C.  3;  Har- 

2  Salk.  597;  Gregg's  Case.  2  Salk.  596;  rison  v.    Douglas,    3    A.   &    E.    396; 

Burrou-h   v.    Skinner,  5  Burr.  2639;  Wright   v.    Goddard,  8  A.  &  E.  144. 

Malcolm  v.  FuUarton,   2  T.    R.  648;  » Leggett  v.   Cooper,   2    Stark.   R. 

Cox   v.    Parry,   1   T.    R.  465;  Cox  v.  103. 
Robinson,  3  Str.  1027:  Gutteridge  v. 


Estoppel  in  Pais.  905 

other  words  the  payment  of  money  into  court  admits  conchisively 
every  fact  which  tlie  plaintiff  would  be  obliged  to  prove  in  order 
to  recover  that  money.  1  But  it  is  an  admission  to  no  greater 
extent,  and  admits  nothing  beyond  that.  But  where  there  are 
several  counts  in  a  declaration  and  a  part  only  of  the  sum 
demanded  is  paid  into  court  without  specification  as  to  which 
count  it  is  to  be  applied,  the  payment  is  an  admission  to  this 
extent :  it  admits  that  the  defendant  owes  the  plaintiff  the  sumso 
paid  on  some  one  of  the  several  counts,  but  is  not  an  admission  of 
an  indebtedness  under  any  one  of  them,  nor  a  liability  on  all.''  If 
the  contract  is  illegal  or  invalid,  the  payment  into  court  gives  it 
no  validity.  This  rule  of  conclusiveness  applies  equally  to  crimi- 
nal cases.  Thus  where  a  prisoner  had  been  married  according  to 
the  rites  of  the  Koman  Catholic  church,  having  stated  at  the  time 
that  he  was  a  Roman  Catholic,  upon  an  indictment  for  bigamy  he 
was  not  permitted  to  show  that  at  that  time  he  was  a  Protestant,  in 
order  to  invalidate  the  marriage.'  The  return  to  an  execution, 
although  made  by  the  deputj-  in  the  sheriff's  name,  is  the  act  of 
the  sheriff',  and  when  the  question  comes  up  directly  between  one 
of  the  parties  and  the  sheriff,  he  is  bound  by  the  return  and  can- 
not impeach  the  truth  of  it.*  The  return  of  a  constable  of  per- 
sonal service  is  conclusive  of  the  fact,*  and  the  defendant  cannot 
be  allowed  to  prove  on  the  trial  that  he  was  not  served.  ^ 

§  837.  In  those  States  where  the  implied  lien  of  a  vendor 
is  regarded  as  an  existing  right  to  priority  of  payment  out  of  the 
land  thus  incumbered,  a  vendor  who  holds  a  lien  for  the  payment 
of  the  purchase  money  by  afiirmative  acts  and  declarations,  in- 
duces the  belief,  on  the  part  of  a  subsequent  purchaser  prior  to 
his   purchase,  that  he  renounces  or  abandons   his   lien,    it  is   a 

1  Archer  v.  English,  2   Scott  N.  S.  Hingham  v.  Robbins,  5   M.  &  W.  94. 

156;   Cooper  v.  Blick,  2   Q.  B.  915;  ^  R.  v.  Orgill,9  C.&  P.  80;  Philadel- 

Gales    V.    Holland,   7  E.   &  B.   336;  phia  v.  Williamson,  10  Phila.  176. 

Thompson  v.    Jackson,    1   M.  &  Gr.  *  Sheldon  v.   Paine,  10  N.  Y.  398: 

242;  Randall  V.  Lynch,  2  Campb.352;  Haynes  v.  Small,  22   Me.  14;  Barrett 

Middletown    v.   Brewer,   Peake,    15;  v.  Copeland,  18  Vt.  69;  Benjamin  v. 

Cox  V.   Parry,  1    T.  R.  464;  Watkins  Hathaway,    3   Conn.    532;    Grant    v. 

V.  Towers,    2  T.    R.    275;  Griffith  v.  Shaw,  1  Root,  526;  Boomer  v.  Lane, 

Williams,    1   T.    R.  710;  Stapleton  v.  10  Wend.  525;  Townsead   v.   Olin,  5 

Norvell,  6  M.  &  W.  9;  Archer  v.  Wal-  Weud.  209. 

ker,  9  Dow.  21.  5  Hubbard  v.  Chapin,  28  How.  Pr. 

'  Hubbard  v.  Knous,    7  Cush.  556;  407. 


066 


The  Law  of  Estoppel. 


waiver  thereof  and  the  vendor  cannot  thereafter  enforce  it  to 
the  prejudice  of  such  purchaser.'  This  principle  of  estoppel  is 
applicable  to  mechanics'  liens.  In  order  to  create  such  a  waiver 
as  to  estop  a  party  from  setting  up  or  claiming  a  lien,  there  must 
be  an  intention  implying  either  an  actual  determination  of  the 
lien  holder  to  surrender  the  right,  or  such  acts  on  his  part  that 
the  public  may  reasonably  suppose  he  had  waived  his  secur- 
itv  of  lien,  in  wliicih  case  he  will  be  estopped  from  afterwards 
asserting  it.*  The  acceptance  of  a  mortgage  is  a  waiver  of  such 
a  lieu.'  So,  a  voluntary  and  unconditional  delivery  to  the  owner 
of  property  on  which  a  mechanic's  lieu  has  accrued  is  a  waiver 
of  the  lien,  except  in  case  of  fraud,  and  perhaps  mistake.* 
Where  a  vendor  accepts  a  mortgage  upon  the  land  sold  as  secur- 
ity for  the  purchase  money,^  it  is  an  abandonment  of  his  implied 


1  Scott  V.  Orbison,  21  Ark.  202; 
Pvcdford  V.  Gibson,  12  Leigh,  332; 
Iielimd  V.  Berrymau,  3  Busii,  350; 
Thompson  v.  Dawson.  3  Head,  384; 
McLaurie  v.  Thomas,  39  111.  291:  At- 
kinson V.  Lindsey,  39  Ind.  296;  Burnes 
V.  Taylor,  23  Ala  2.35;  Keilly  v.  Mi- 
ami, &c.  Co.,  5  Ohio,  333;  Clower  v. 
Kavvlins,  17  IMiss.  122;  McCown  v. 
Jones,  U  Tex.  682;  Brown  v.  Oilman, 
4  Wiieat.  255. 

■  Scott  V.  Orbison,  21  Ark.  202; 
Doub  V.  Barnes,  4  Gill,  1;  Alexander 
V.  Slavens,  7  B.  Mon.  356;  Howard  v. 
Tucker,  1  B.  &  A.  712;  Pooley  v. 
Budd,  7  Eng.  L.  &  Eq.  229;  AVoodley 
V.  Coventry,  32  L.  J.  Ex.  185;  Chap- 
man V.  Hamilton,  19  Ala.  121. 

3  Gorman  v.  Sanger,  22  Mo.  137; 
Grant  v.  Strong,  18  Wall.  623;  Haley 
V.  Prosser,  8  W.  &  S.  133;  Barrows 
V.  Baughman,  9  Mich.  213;  Kinzey  v. 
Thomas,  28  111.  502;  Gardner  v.  Hall, 
29  111.  279;  Whitney  v.  Joslin,  108 
Mass.  103. 

*  Sensenbrenner  v.  ^Mathews,  48 
Wis.  250;  S.  C,  33  Am.  R.  809. 

5  Shelby  v.  Perrin,  18  Tex.  515; 
Camden  v.  Vail,  23  Cal.  633;  Mattix 


Meand,  19  Ind.  151;  Young  v.  AVood, 
11  B.  Mon.  123;  Pease  v.  Kelly,  3 
Oreg.  417;  Dudley  v.  Dickson,  14  N. 
J.  E.  252;  Harris  v.  Harlan,  14  Ind. 
439 ;  Taylor  v.  Adams,  Gilmer,  329 ;  Mc- 
Clurev.  IIarris,12  B.  Mon.  261;  Baum 
v.  Grigsby,  21  Cal.  173  ;  Schrooder  v. 
Patterson,  4  R.  I.  516;  Phillips  v. 
Sanderson,  1  S.  &  M.  Ch.  462;  Porter 
V.  Dubuque,  20  Iowa,  440;  Cannon  v. 
Bonner,  38  Tex.  48?;  Little  v.  Brown, 
2  Leigh,  355;  Hadley  v.  Pickett,  25 
Ind.  4u0;  liriiwn  v.  Gilman,  4  Wheat. 
291;  Way  v.  Patty,  1  Ind.  102:  Hunt 
V.  Waterman,  12  Cal.  301;  Nairn  v. 
Prowse,  6  Ves.  752;  Capper  v.  Spotlis- 
woode,  Taml.  21;  Bond  v.  Kent,  2 
Vern.  281;  Cood  v.  Pollard,  9  Price, 
544;  Biurger  v.  Potter,  32  111.  66; 
Maham  v.  Coombs,  14  Ohio,  428;  Fisk 
V.  Potter,  2  Keyes,  64;  Ilett  v.  Collins, 
103  111.  74;  Felton  v.  Smi;h,  84  Ind. 
485;  Akers  v.  Luse,  56  Iowa,  346; 
Gnash  v.  George,  58  Iowa,  492;  Ken- 
dall V.  Eggleston,  56  Iowa,  128; 
Boyerv.  Austin,  75  Mo.  81:  Eraison  v. 
Whitllesy,  55  Mo.  258;  Brown  v.  Bar- 
rett. 75  Mo.  275;  Ryhiner  v.  Frank, 
105  HI.  337. 


Estoppel  in  Pais.  967 

Hen,  and  this,  though  the  moi-tgage  be  void,  as  the  express  lien 
of  the  mortgage  excludes  an  implied  one.  Any  conduct  in  the 
vendor  that  makes  it  unfair,  unjust  or  inequitable  for  a  vendor  to 
enforce  his  implied  lien,  vs^ill  discharge  it.* 

>  Redford  V.  Gibson,  12  Leigh,  343;  Orbison,    21    Ark.    202;     Glower    v. 

Fowler  v.  Rust,  2  Marsh.  294;  Clark  Rawlings,    17    Miss.    122;    Lynch    v. 

V.  Hunt,  3  J.  J.  Marsh.  558;  Phillips  Dearth,   2    Pa.    St.    101  ;    Thompson 

V.  Sanderson,  1  S.  &  M.  Gh.  462;  Mc-  v.  Dawson,  3  Head,   384;  Brown  7. 

Gown  V.  Jones,  14  Tex.  682;  Scott  v.  Gilman,  4  Wheat.  255. 


9G8  The  Law  of  Estoppel. 


CHAPTER  XIII. 

ESTOPPEL  IN  PAIS. 

ITS     APPLICATION    TO     THE     RELATION     OF    LANDLORD   AND   TENANT, 
VENDOR   AND    VENDEE,    BAILOR   AND   BAILEE,    ETC. 

Section  838.  Estoppels  in  pais,  in  their  common  law  origin, 
seem  to  have  arisen  only  in  the  case  of  those  solemn  and  peculiar 
acts  to  which  the  law  gave  the  power  of  creating  a  right  or  pass- 
ing an  estate,  and  there  was  as  much  importance  and  efficacy 
attached  to  estoppels  in  pais  as  to  technical  estoppels  by  record 
and  deed.  While  a  feoffment  was  a  mere  act  in  pais,  it  was  the 
only  manner  by  which  an  estate  of  freehold  in  actual  possession 
could  be  conveyed,  while  the  courts  attributed  and  gave  them  far 
greater  effect  than  was  given  to  the  deed  which  was  used  to  per- 
petuate their  existence,  or  to  transfer  a  reversion  in  the  same 
land,  when  held  bj'  a  tenant  of  the  grantor,  and  even  in  those 
cases,  when  a  reversion  was  granted  by  deed,  another  act  inpiais, 
an  attornment  was  necessary  to  complete  the  grant ;  and  being 
of  tlie  most  solemn  character,  as  establishing  the  feudal  relation 
between  the  tenant  and  his  new  lord,  was  equally  binding  under 
seal  or  of  record.'  A  man  may  be  estopped  as  effectually  by  a 
matter  in  pais  as  by  matter  of  record,  and  a  party  may  be  estop- 
ped by  the  acceptance  of  rent,  or  by  entry,  or  by  livery.  The 
presumption  of  the  law  being  that  the  act  \vas  done  or  accepted 
on  the  faith  of  an  express  or  implied  agreement  that  its  validity 
should  not  be  disputed,  or  the  resulting  obligation  denied. 

§  839.  The  instances  given  by  Coke,  and,  in  fact,  by  all  of 
the  old  legal  writei-s,  of  examples  of  estoppel  in  pais  are — by 
matter  inpais,^'&  by  livery,  by  entry,  by  acceptance  of  rent,  par- 
tition, and  by  acceptance  of  an  estate.  An  estoppel  by  matter 
in  pais  occurs,  where  one  man  has  accepted  rent  of  another  ;  he 

'  Martin  v.  Ives,  17  S.  &  R.  364;  Sparrow  v.  Kingman,  1  N.  Y.  243. 


Estoppel  iisr  Pais. 


969 


will  be  estopped  from  afterwards  denying,  in  an  action  with  that 
person,  that  he  was,  at  the  time  of  such  acceptance,  his  tenant.* 
So,  an  attornment  to  a  receiver  appointed  by  the  court  constitutes 
a  tenancy  by  estoppel  between  the  tenant  and  the  receiver  which 
the  court  appoints  for  the  purpose  of  collecting  the  rents  till  a 
decree  can  be  pronounced,  taking  care  that  the  tenant  shall  be 
protected,  both  while  the  receiver  continues  to  act  and  when  he 
is  withdrawn.*  An  illustration  of  an  estoppel,  by  an  acceptance 
given  by  Littleton,  is  the  case  of  a  feoffment  without  any  writ- 
ing accompanying  it — a  case  that  could  not  arise  at  the  present 
time,  owing  to  the  statute  of  frauds.  There  are,  however,  nu- 
merous cases  of  this  sort  of  an  estoppel,'  for  there  is  no  rule 


»  Com.  Dig.  Tit.  Estoppel,  A.  3; 
Coke  Lit.  352;  Springstein  v.  Schem- 
erhorn,  13  Johns.  357;  Sweetzer  v. 
McKeniiey,  65  Me.  235. 

'Pliillips  V.  Robertson,  2  Overt. 
399;  Robinson  v.  Hathuway,  1  Brayt. 
151;  Moore  v.  Bcasley,  3  Ohio,  294; 
Hamel  v.  Lawreoce,  1  A.  K.  Marsh. 
330;  Reed  V.  Sharpley,  6  Vt.  602;  Mosh- 
ier  V.  Reding,  13  Me.  478;  Drane  v. 
Gregory,  3  B.  Mon.  619;  Shetton  v. 
Doe,  6  Ala.  330;  Evans  v.  Matliias, 
7E.  &  B.  590;  Doe  v.  Morris,  12  East, 
237. 

3  Boyer  v.  Smith,  5  Watts,  55;  Mil- 
ler V.  McBriar,  4  S.  &  R.  383;  Phil- 
lips v.  Robertson,  3  Overt.  399;  Robin- 
son V.  Hathaway,  Brayt.  151 ;  Ander- 
son V.  Darby,  1  N.  &  M.  369;  Farmer 
V.  Pickins,  83  N.  C.  549;  Moore  v. 
Beasley,  3  Ohio,  294;  Hamel  v.  Law- 
rence, 1  A.  K.  Marsh.  330;  Jackson 
V.  Harper,  5  Wend.  346;  Codman  v. 
Jenkins,  14  Mass.  93;  Misher  v.  Red- 
ing, 13  Me.  478;  Perkins  v.  Grovener, 
Minor,  352;  Bonders  v.  Vansickle,  3 
Halst.  313;  Norton  v.  Sanders,  1  Dana, 
14;  Gage  v.  Campbell,  131  Mass.  566;  ' 
Helena  v.  Turner,  36  Ark.  577;  Territt 
V.  Covenhoven,  79  N.  Y.  400;  Graham 
v.  Moore,  4  S.  «fc  R.  461;  Booth  v. 
Wiley,  102  111.  84;  Stout  v.  Merrill,  35 
Iowa,    2i7;   Frazer  v.    Robinson,   42 


Miss.  121;  Dunshee  v.  Grundy,  15 
Gray,  314;  Richardson  v.  Hawey,  37 
Ga.  234;  Gleaton  v.  Gleaton,  37  Ga. 
650;  Wilborn  v.  Whitfield,  44  Ga.  51; 
Rogers  v.  Waller,  4  Hey.  205 ;  Cowley 
V.  Chiles,  5  J.  J.  Marsh.  303;  Long- 
fellow V.  Longfellow,  61  Me.  590; 
Walden  v.  Bodley,  14  Pet.  156;  Rob- 
erts V.  AndcKSon,  3  John.  Ch.  371; 
Goodman  v.  Jones,  26  Conn.  264; 
Plumer  v.  Plumer,  30  N.  H.  558; 
Elliott  V.  Smith,  23  Pa.  St.  131; 
Morse  v.  Roberts,  2  Cal.  515;  Ramiies 
V.  Kent,  2  Cal.  558;  Hood  v.  Mathis, 
21  Miss.  308;  Shepard  v.  Martin,  31 
Mo.  493;  Walker  v.  Harper,  33  Mo. 
592;  Allen  v.  Chatfield,  8  Minn.  435; 
Duke  V.  Ashby,  7  H.  &  N.  600;  Peo- 
ple V.  Kelsey,  38  Barb.  269;  Cranz  v. 
Kroger,  22  111.  74;  Sims  v.  Glazencr, 
14  Ala.  695;  Patton  v.  Deshon,  1  Gray, 
325;  McKine  v.  Montgomer3%  9  Cal. 
575;  Doggett  v.  Norton,  30  III.  332; 
Hemes  v.  Stewart,  26  Mo.  529;  At- 
wood  v.  Mansfield,  33  111.  453;  Henley 
V.  Bank,  16  Ala.  552;  Paterson  v. 
Hansel,  4  Bush,  654;  London  &  Co. 
V.  West,  L.  R.  Q.  C.  P.  553;  People 
V.  Stiner,  45  Barb.  56 ;  Horner  v.  Leeds 
25  N.  J.  L.  106;  Ingraham  v.  Bald- 
win, 9  N.  Y.  45;  Griffith  v.  Parmley, 
38  Ala.  393;  Hill  v.  Boutell,  3  N.  H. 
502;  Lucas  v.  Brooks,  18  Wall.  436; 


970 


The  Law  of  Estoppel. 


more  clearly  settled  or  more  firmly  established,  than  that  a  man 
shall  not  be  permitted,  during  his  possession  or  occupation  of 
premises,  to  disjiute  the  title  of  his  landlord.  Even  though  the 
lease  be  void.' 

§  840.  The  estoppel^  hy  payment  of  rent  is  not  so  strong  as 
that  b}'  acceptance  of  the  tenancy,  for  a  person  who  has  paid 
rent  is  allowed  to  show  that  he  did  so  in  consequence  of  mistake 
or  misrepresentation."  Payment  of  rent,  under  a  distress,  is  not 
a  conclusive  admission  of  title  in  the  distrainor,  but  may  be 
rebutted  by  showing  that  he  never  had  any  title.*  If  the  tenant 
cannot  show  some  reason  to  the  contrary,  the  payment  of  rent 
estops  him  from  disputing  the  title  of  the  landlord."  This  prin- 
ciple of  estoppel  naturally  arises  from  the  peculiarity  of  the  rela- 
tion of  landlord  and  tenant,  to  whicji,  also,  other  branches  of  the 
law  of  estoppel  apply. 

§  8-il.  The  estoppel  in  pais  which  prevents  the  tenant  from 
denying  the  landlord's  title,  depends  upon  the  tenant's  obligation, 
express  or  implied,   that  he  will  at  some  time,  or  in  some  event, 


Fuller  V.  Sweet,  30  Mich.  237;  Bow- 
dish  v.  Dubuque,  38  Iowa,  341;  Baker 
V.  Hall,  59  Mo.  265;  Abbott  v.  Cro- 
martie,  73  N.  C.  292;  School  v.  Burt, 
11  Vt.  637;  Settle  v.  Hinson,  1  Morris, 
14  ;  Wilson  v.  James,  79  N.  C.  349  ; 
Hatch  V.  Bullock,  57  N.  H.  566;  Cook 
V.  Loxley,  5  T.  K.  4;  Morton  v. 
"Woods,  3  Q.  B.  638;  Thrall  v.  Omaha, 
&c.  Co.,  5  Neb.  295;  Earle  v.  Hall,  31 
Ark.  470;  Morrison  v.  Bassett,  26 
Minn.  235;  Clarke  v.  Clarke,  51  Ala. 
498;  Vernam  v.  Smith,  15  N.  Y.  327; 
Higgins  V.  Turner,  61  Mo.  249;  Sharpe 
V.  Kelly,  5  Denio,  431 ;  Allen  v.  Chat- 
field,  8  Minn.  440;  Franklin  v.  Merida, 
35  Cal.  558;  "Water  Power  Co.  v.  Mor- 
rison, 12  Mmn.  249;  Anderson  v. 
Crichter,  11  G.  &  J.  450;  Goodsell  v. 
Lawson,  42  Ind.  348;  Balls  v.  "Wcst- 
"Wood,  2  Camp.  11;  Assoc,  v.  "Whit- 
more,  75  Me.  117;  Tyler  v.  Davis,  61 
Tex.  674;  Houston  v.  Ferris,  71  Ala. 
670;  Whiting  v.  Edmunds,  94  N.  Y. 


309;  Van  Cleave  v.  Wilson,  73  Ala. 
387. 

'  Heath  v.  Williams,  25  Me.  209; 
King  V.  Murray,  6  Ired.  62;  B^'rne  v. 
Beeson,  1  Doug.  179. 

*  Rogers  v.  Pitcher,  6  Taunt.  202; 
Doe  V.  Wiggins,  4  Q.  B.  367;  Fen- 
ner  v.  Duplock,  9  Moo.  40;  Cornish 
v.  Searell,  8  B.  «fc  C.  471;  Gregory  v 
Doidge,  3  Bing.  474;  Doe  v.  Brown, 
7  Ad.  &  El.  447;  Doe  v.  Francis,  2 
Moo.  &  R.  57;  Brook  v.  Briggs,  3 
Bing.  N.  C.  572;  Claridge  v.  Macken- 
zie, 4  Man.  &  G.  143;  Doe  v.  Barton, 
11  Ad.  &  El.  307;  Jew  v.  Wood,  1  Cr. 
&  P.  185. 

3  Knight  V.  Cox,  18  C.  B.  645; 
Cooper  V.  Blandy,  1  Bing.  N.  C.  45; 
Doe  V.  Wiggins,  4  Q.  B.  367;  Patton 
V.  Jones,  3  Camp.  372. 

*  Cooper  v.  Blandy,  1  Moo.  &  S. 
562;  Doe  v.  Plomer,  9  Bing.  41;  Doe 
V.  Boulter,  6  Ad.  &  El.  675;  Hall  v. 
Butler,  10  Ad.  &  El.  204;  Doe  v. 
Crago,  6  C.  B.  90. 


Estoppel  in  Pais.  971 

surrender  the  possession,  and  it  arises  out  of  the  injustice  of  per- 
mitting one  who  has  obtained  possession  of  land,  by  promising  to 
pay  an  equivalent  in  rent,  to  use  the  advantage  thus  acquired  as  a 
means  of  withholding  both  the  rent  and  the  land,  and  would  be 
of  comparativel}'^  little  value  if  limited  to  the  landlord,  and 
unsusceptible  of  being  enforced  by  those  claiming  under  him  as 
heirs  or  purchasers.  While  the  foundation  of  estoppels,  upon  the 
old  adage,  "  that  the  truth  is  not  to  be  spoken  at  all  times,"  is  a 
harsh  one,  and  is  never  to  be  applied  except  where,  to  allow  the 
truth  to  be  told,  would  consummate  a  wrong  to  the  one  party,  or 
enable  the  other  to  secure  an  unfair  advantage  ;  as  between  land- 
lord and  tenant,  the  estoppel  is  designed  as  a  shield  for  the  pro- 
tection of  the  former,  but  not  as  a  sword  for  the  destruction  of 
the  latter.'  The  lessee  is,  therefore,  estopped  from  denying  the 
lessor's  title,  and  setting  up  such  want  of  title  as  an  answer  to  an 
action  for  the  rent ;  for  the  law  will  not  suffer  a  tenant  to  abuse 
a  possession  gained  by  the  act  and  confidence  of  the  landlord,  and 
then  turn  it  to  the  injury  of  the  latter.' 

§  842.  In  the  preceding  chapter,  the  rule,  that  if  a  man  so 
conducts  himself,  whether  intentionally  or  not,  that  a  reasonable 
person  would  infer  that  a  certain  state  of  things  exists,  and  acts 
on  that  inference,  the  former  shall  be  afterwards  estopped  from 
denying  it,  has  been  examined  in  numerous  cases,  where  it  has 
been  deemed  applicable  by  courts  of  law  and  equity. 

If  there  is  continued  occupation,  and  an  agreement  that  the 
relation  of  landlord  and  tenant  shall  be  created,  there  is  the  same 
estoppel. °  And  a  mere  licensee  is  in  this  respect  on  the  same 
footing  as  a  tenant.*  An  assignee  of  the  lessee  is  equally  estopped 
with  the  lessee  himself.^  And  so  is  a  party  defending  an  eject- 
ment as  landlord.^  In  like  manner,  the  lessee  is  not  permitted 
to  impeach  the  title  of  the  assignee  of  the  lessor  in  an  action  of 

>  Franklin  v.  Merida,  35  Cal.  558;  *  Doe  v.  Baytup,  3  Ad.  &  El.  188; 

Tewksbury  v.   Magraff,  33   Cal.  237.  Doe  v.  Birchmore,  9  Ad.  &  El.  663. 

'Dolby  V.    Ile.s,    11   A.  &  E.  335;  ^  Taylor  v.  Needbam,  2  Taunt.  277; 

Pliipp  V.  Scultborpe,    1   B.  &  A.  50;  Doe  v.  Mills,  2  Ad.  &  El.  17;  London 

Levy  V.    Lewis,   28  L.   J.  C.  P.  144;  &c.    Co.,   v.    West,   L.    R.    2    C.   P. 

Blakemore  v.    Tabor,   22    Ind.    466;  553. 

Walrath  v.  Redfleld,  18  N.  Y.  457.  «  Doe  v.  Mizen,  2  Moo.  &  Rob.  56; 

3  Morton  v.  Woods,  L.  R.  3  Q.  B.  Doe  v.  Birchmore,   9  Ad.  &  El.  662. 
658. 


972 


The  Law   of  Estoppel 


assu)nj)fiit  for  use  and  occnpation  ;  for  the  rule  is  not  confined  to 
ejectu}ont. '  Nor  can  an  under-tenant  be  permitted  to  dispute  a 
title  which  is  valid  against  the  person  of  whom  he  holds.'  (Nor 
can  the  lessee  contest  the  title  of  the  assignee  of  the  lessor,  by 
showing  that  the  lessor  had  no  title  at  aH/)  So,  a  copyholder, 
who  has  been  admitted  and  done  fealty  to  the  plaintiff  as  lord  of 
the  manor,  is  estopped  from  disputing  the  plaintiff's  title  to  the 
manor  in  an  action  of  ejectment  for  a  forfeiture." 

§  843.  While  the  general  rule  is  that  both  tenants  and  those 
in  privity,  either  in  blood  or  estate,  are  estopped  from  disputing 
the  title  of  the  landlord  or  the  title  of  any  one  who  succeeds  to 
his  rights,  so  long  as  they  hold  the  possession  originally  derived 
from  him,  this  principle  does  not  forbid  the  tenant  from  showing 
that  the  landlord's  title  has  expired  or  has  been  extinguished  by 
his  own  act  or  by  operation  of  law.^  And  this,  although  the 
tenant  does  not  claim  under  that  title,  and  though  the  title  be 
outstanding  in  the  trustee  of  the  lessor."  Because,  in  a  case  of 
this  kind  he  does  not  dispute  it,  but  confesses  and  avoids  it  by 
vavittei' ex  post  facto.     It  is  admitting  it  and  proving  that  it  no 


»  Delany  v.  Fox,  2  C.  B.  N.  S. 
768. 

«  Doc  V.  Beckett  4  Q.  B.  605;  Ren- 
nie  V.  Robinson,  1  Bing.  147. 

^  Gouldswo.tb  V.  Knights,  11  jM.  & 
N.  337;  Wultonv.  Waterhouse,  2  W. 
Saunders,  41S;  Cutbberstou  v.  Irving, 
4  H.  ifc  N.  135;  Rennie  v.  Robertson, 
1  Bing.  147;  Doe  v.  Whitroe,  1  Dowl. 
&  R.  N.  P.  C.  1;  People  v.  Angel,  61 
How.  Pr.  159. 

•*  Doe  V.    Budden,   5  B.  &  A.  026. 

6  Downs  V.  Cooper,  2  Q.  B.  256; 
Doe  V.  Edwanls,  5  B.  &  A.  10G5; 
England  V.  Slade,  3  T.  R.  602;  Jacii- 
son  V.  Ramsl)Otbara,  3  M.  &  S.  516; 
Fenncr  v.  Duplock,  9  ]\Ioo.  3;;8; 
Lamson  v.  Clarkson,  113  Mass.  348; 
Alehouse  v.  Gomme,  2  Bing.  41 ; 
Gravenor  V.  Woodbouse,  7  ^loo.  289; 
Jackson  v.  Rowland,  6  Wend.  066; 
Sebastian  v.  Ford,  6  Dana,  436;  Cla- 
ridge  v.  ^Mackenzie,  4  Mo.  &  G.  143; 
Doe  v.  Skirrow,  7  A.  &  E.  263;  Hoag 


v.  Hoag,  35  N.  Y.  469;  McGuffle  v. 
Carter,  42  Mich.  297;  Fuller  v.  Sweet, 
30  Mich.  237;  Hilburn  v.  Fogg,  99 
Mass.  11;  Despard  v.  Walbridge,  15 
N.  Y.  374;  Mountney  v.  Collier,  16 
E.  L.  &  E.  232;  Hopcraft  v.  Keys,  9 
Bing.  613;  Love  v.  Emerson,  48  111. 
100;  Ilawes  v.  Shaw,  100  Mass.  189; 
Delaney  v.  Fox,  2  C.  B.  N.  S.  775; 
Mayor  V.  Wbitt,  15  M.  &  W.  577; 
Shields  v.  Lozear,  34  N.  J.  496;  Morse 
V.  Goddard,13  Met.  177;  Sims  v.  Sal- 
tus,  3  Deni(j,  217;  Whalin  v.  White, 
25  N.  Y.  405  ;  Giles  v.  Elswortb,  10 
Md.  333;  Homer  v.  Leeds,  25  JS.  J.  L. 
106;  Howell  v.  Ashmore,  22  N.  J.  L. 
201;  Reyers  V.  Farwdl,  9  Barb.  615; 
St.  John  V.  Quitzon,  72  111.  334;  Ry- 
der V.  Jlansell,  66  Me.  167;  Jackson 
V.  Davis,  5  Cow.  624:  Otis  v.  McMil- 
lan, 70  Ala.  46;  Lancashire  v.  Mason, 
76  M.  C.  455. 
«  Hoag  V.  Hoag,  35  N.  Y.  469. 


Estoppel  in  Pais.  973 

longer  exists.  He  may  also  dispute  its  validity  at  any  time  j)re- 
vious  to  his  own  tenancy,  so  as  to  avoid  an  assurance  made  by 
the  landlord  before  its  commencement.'  If  a  tenant  consents  to 
give  up  possession  to  a  J^arty  claiming  by  title  adverse  to  his  own 
landlord,  that  party  is  estopped,  as  the  tenant  would  have  been 
from  disputing  the  landlord's  title.*  A  person  who  defends  in 
ejectment,  as  a  landlord,  is  bound  by  an  estoppel  of  this  sort 
existing  against  a  tenant  in  possession.' 

§  844.  Where  premises  are  let  by  the  agent  of  an  unnamed 
landlord,  as  such,  the  tenant  who  has  gone  into  possession  is 
estopped  from  disputing  the  title  of  the  unnamed  landlord,  when 
disclosed.^  The  estoppel  is  applicable  to  and  includes  a  licensee 
who  is  prevented  from  disputing  the  title  of  the  person  who 
licensed  him.^  In  this  case  the  defendant  asked  leave  of  the 
party  to  get  vegetables  in  the  garden  ;  ha,ving  thus  obtained  an 
entrance  took  possession  of  the  house  and  claimed  the  title ;  Keld^ 
that  she  was  estopped.  The  party  must  first  give  up  possession 
to  the  party  by  whom  he  was  let  in,  and  then,  if  he  or  she  or  any 
one  claiming  by  him  has  a  title  aliunde.,  that  title  can  be  tried 
by  ejectment.  This  rule  applies  also  to  the  case  of  a  person 
coming  in  by  permission,  as  a  lodger  or  servant,^  and  a  land- 
lord may  by  his  acts  be  estopped  from  setting  up  a  breach  of  the 
conditions  of  the  lease  and  demanding  a  forfeiture.^  The  rela- 
tion of  landlord  and  tenant  exists  between  the  lessor  and  the 
lessee  of  the  house  standing  on  land  of  a  third  party  by  permis- 
sion.' The  re.ison  of  the  rule  of  estoppel  applies  to  this  prop- 
erty with  as  much   force  as  to  any  other.     Many   landlords  have 

'Doe  V.  Barton,  11  A.  &  E.  307;  Bedford  v.  Kelly,  61  Pa.  St.  491;  Doe 
Mayorv.  Whilt,  15M.  &W.  571;Doe  v.  Baytup,  3  A.  &  E.  188;  Doe  v. 
V.  Powell,  1  A.  &  E.  531;  Doe  v.  Sea-  Bircbmore,  9  A.  &E.  663. 
ton,  2  C.  M.  &  R.  728;  R'y  Co.  v.  ^  Doe  v.  Baytup,  3  A.  &  E.  IBS- 
West,  L.  R.  2.  C.  P.  553;  Clark  v.  Crossley  v.  Dixon,  10  H.  L.  C.  304; 
Adie,  L.  R.  2  App.  Cas.  423;  James'  Kinsman  v.  Parkhurst,  18  How.  289; 
Case,  Moo.  181.  Glynn  v.  George,  20  N.  H.  114;  State 

2  Doe  V.  Mills,  2  B.  &  A.  17.  v.  Forge  Co.,  38  N.  J.  L.  74. 

3  Doe  V.    Smythe,   4  M.  &  S.  347;  "  Garhart  v.  Finney,  40  Mo- 340. 
Doe  V.  Mizem,    2  M.  &  R.  56;  Veale  '  Doe  v.  Birchmore,  9  A.  &  £.  663. 
V.  Warner,  1  Wm.  Saunders,  328.  «  Smith  v.  Grant,  56  Me.  255;  Shel- 

•»  Flemming  v.  Gooding,  10  Bing.  bury  v.  Scotsford,  Yelv.  23;  Ryder  v. 
549;  Holt  v.  Martin,  51  Pa.  St.  499;  Mansell,  60  Me.  167;  Crauz  v.  Kroger, 
Hitchins  V.  Thompson,  5   Exchq.  54;      22  111.  74. 


974  The  Law  of  Estoppel. 

tliemselves  onlj'  the  estate  of  lessees.  And  the  doctrine  of  estop- 
pel as  between  principal  and  at^ent,  raid  bailor  and  bailee,  is  not 
widely  different  from  that  which  applies  between  hirers  and  let- 
ters of  real  estate.' 

§  845.  The  ordinary  method  of  establishing  a  privity  in 
estate,  is  by  proof  of  the  payment  of  rent,  which  is  always 
'prima  facie  evidence  of  the  title  of  the  landlord  and  is  conclu- 
sive against  the  party  paying  and  all  others  claiming  under  or  in 
privity  with  him.''  If  a  privity  in  estate  has  subsisted  between 
the  parties,  proof  of  title  is  unnecessary  ;  for  a  party  is  not 
allowed  to  dispute  the  original  title  of  him  by  Mdiom  he  has  been 
let  into  possession.'  So  a  lessee  of  a  close  in  severalty  demised  to 
him  by  one  of  several  tenants  in  common,  cannot  set  up  an  ad- 
verse title  in  bar  of  an  action  by  his  lessor.*  This  applies  to  the 
case  of  a  tenant,  by  wrong  against  the  owner  and  to  one  holding 
over  after  the  expiration  of  the  lease,  though  the  landlord's  title 
was  acquired  by  wrong,  or  only  an  equitable  title,  and  when  the 
relation  of  landlord  and  tenant  is  once  established  by  express  act 
of  the  parties,  it  attaches  to  all  who  may  succeed  to  the  posses- 
sion through  or  under  the  tenant,  whether  immediately  or  re- 
motely ;  the  succeeding  tenant  being  as  much  affected  by  the  acts 
and  admissions  of  his  predecessor  in  regard  to  title  as  if  they 
were  his  own.*     So,  a  purchaser  at  a  sheriff's  sale  is  privy  to  the 

1  Coburn   v.    Palmer,  8  Cush.  124;  Robbins,    3  Humph.  614 ;    Siglar  v. 

Ililburn  V.  Fogg.  99  Mass.  11;  Smith  V.  Makme,    3  Humph.  16;   Hussmau  v. 

Grant,  5G  Me.  2.'5.j.  Wieke,  50  Cal.  250;  Bertram  v.  Cook, 

="  Doe  V.  Wilkinson,  3  B.  &  C.  413;  32  Mich.  518;  Hughes  v.  Watt,  28  Ark. 

Cooper  V.    Blandj-,   4  M.    &   S.  562;  153;    Stacy  v.  Bostwick,  48  Vt.  192; 

Chapiu  V.  Foss,   75  111.   280;  Golds-  Howell    v.    Ashmore,    2    N.    J.  261; 

-worthy  V.  Knight,   11  M.   &  W.  337;  Boynton  v.  Jockway,  10   Paige,  307; 

Dunshcu   V.    Grundy,    15   Gray,   314;  Conger  v.  Daniel,  1  McMillan  Ch.  157; 

Whalen  V.  AVhite,  25N.  y.  462;  Wil-  Cody    v.    Quarterman,    12    Ga.    386; 

Hams   V.   Neales,  L.  R.  9   C.  P.  177;  Dashiel  v.  Collier,  4  J.  J.  Marsh.  (iOl; 

Doe  V.  Barton,  3  P.  »fc  D.  194;  Rennie  Pierce  v.  Pierce,  25  Barb.  243;  Klinge 

V.  Robinson,  1  Biug.  147;  Fleming  v.  v.  Lachenour,    12   Ired.  80;   Lyon  v. 

Gooding,    10    Bing.    549;    Fenner    v.  Washburn,  3  Col.  201. 
Duplock,  9  Moo.  38.  *  Doe  v.  Mitchell,  B.  &  B.  11;  Jack- 

=*  Coburn  v.    Palmer,  8  Cush.   124;  son  v.  Creal,  13  John.  116. 
Hilbourn  v.  Fogg.  99  Mass.  11;  Smith         »  Milhouse  v.  Patrick,  6  Rich.  350; 

V.    Grant,   56  Me.  255;  Callender  v.  Doe  v.  Smythe,  4  M.  &  S.  347:  Doe  v. 

Sherman,   5  Ired.   711;    Winnard  v.  Mills,   2    A.   &    E.    17;    Barwick    v. 


Estoppel  in  Pais.  975 

debtor's  title,  and  is  therefore  equally  estopped  with  him.  An 
agreement  to  purchase  lands  if  made  deliberately,  estops  the  pur- 
chaser from  denying  the  title  of  the  vendor,  as  a  recovery  can- 
not be  had  in  ejectment  without  proof  of  title,  and  that  it  may 
be  defeated  by  proving  an  outstanding  title  in  a  third  person. 
The  result  of  allowing  a  tenant  to  deny  the  right  of  a  landlord, 
in  an  ejectment  for  the  land,  would  be  to  take  the  estate  from 
the  landlord  and  confer  it  on  the  tenant  whenever  there  is  a 
defect  either  in  the  title  itself  or  the  proof  brought  forward  to 
sustain  it.  The  law  therefore  does  not  permit  or  tolerate  a  course 
which  is  equally  inconsistent  with  public  policy  and  piivate 
faith,  and  would  prevent  men  from  letting  their  property  even 
when  they  were  unable  to  use  it  themselves  ;  when  possession  is 
obtained  under  a  lease,  the  lessee  is  estopped  from  keeping  the 
land  in  violation  of  the  agreement  under  which  it  was  acquired.' 

§  84:6.  An  estoppel  in  pais  is  called  into  existence  by  the 
acceptance  of  possession,  nnder  a  deed,  only  when  the  deed  is 
accepted  in  one  of  those  relations  which  imply  an  obligation  to 
return  or  surrender  possession,  and  a  sort  of  allegiance  to  him 
under  whom  or  in  subjection  to  whose  interest  it  is  held,  such  as 
is  the  relation  of  landlord  and  tenant,  trustee  and  cestui  qui  trust, 
mortgagor  and  mortgagee.*     In  the  case  of  landlord  and  tenant, 

Thompsou,    7    T.    R.  488;  Blake  v.  Gravenor  v.  Woodhouse,  1  Bmg.  38: 

Saunderson,   1  Gray,  332;  Luudsford  Rennie  v.  Robinsou,  1  Bing.  147;  Doe 

V.  Alexander,  4  D.  &  B.  40;  Rennie  v.  Budden,  5  B.  <fc  A.  626;   Doe  v. 

V.    Robinson,    1    Bing.    147;    Doe    v.  Plomer,    9    Bing.    41;    Flemming    v. 

Fuller,  1  T.  &  G.  17;  Doe  v.  Pegge,  Gooding,  10  Bing.  549;  Doe  v.  Vickers, 

1   T.    R.    758;   Osgood   v.  Dewey,  13  4  A.  &  E.  782;  Doe  v.  Clifton,  4  A.  & 

Johns.  240;  Settle  v.  Henson,  1  Morris  E.  809;  Alchorne  v.  Gonime,  2  Bing. 

(la.)  14.  54;   Doe   v.    Fuller,    1    Ty.  &   G.  17; 

•  Doe   V.    Smythe,   4  M.  &   S.  347;  Ward  v.  Ryan,  10  Ir.  C.  L.  17;  Wogan 

Ingraham   v.    Baldwin,    9   N.   Y.  45;  v.    Doyle,    12   L.    R.  Ir.    69;   Hail  v. 

Doe   V.    Mills,   4   M.    &  G.  29;  Att'y  Butler,  10  A.  &  E.  204;  Dolby  v.  lies, 

Gen'rl   v.    Hotham,    1   T.    &   R.  220:  11  A.  &  E.  335;  Doe  v.  Wiggins,  4  Q. 

Veale  v.   Warner,   1   W.  Sauud.  325;  B.  367;  Cowper  v.  Fletcher,  6  B.  ik,  0. 

Morton  v.   Woods,  L.  R.  3  Q.  B.  658;  464. 

Dancer  v.  Hastings,  4  Bing,  2;  Jolly         '  AVillison  v.  Watson,  3  Peters,  43 

V.    Arbuthnot,   4    De    G.    &   J.    224;  Watkins  v.  Holman,  16  Pet.  53;  Blight 

Syllivan  v.    Stradling,    2    Wils.    208;  v.  Rochester,  7  Wheat.  548  ;  Green  v. 

Barwick  v.   Thompson,   7  T.  R.  488;  Munson,  9  Vt.  37;  Kirk  v.  Taylor.  8  B. 

Panton    v.     Jones,     3    Camp.     372;  Hon.  262;  Boone  v.  Armstrong,S7Ind. 


976  The  Law   of  Estoppel. 

it  exists  only  when  possession  has  been  received  under  the  deed, 
and  expires  or  is  discontinued  when  the  landlord's  title  has  deter- 
mined or  the  tenant  has  been  actually  or  constructively  evicted.' 
It  is  an  extension  of  an  estoppel  beyond  its  ordinary  limit  to  apply 
it  to  the  case  of  grantor  and  grantee,  where  the  grantee  claiming 
by  virtue  of  his  own  purchased  right,  and  having  paid  the  money 
for  his  title,  is  under  no  obligation  vrhatever  to  his  grantor,  or  to 
the  widow  claiming  bv  virtue  of  his  grantor's  seizin  in  regard  to 
it. 

§  847.  When  the  grantor  has  no  title  and  the  grant  is  made 
by  bargain  and  sale,  or  other  similar  conveyance,  the  dictum  of 
Lord  Coke  that  an  estoppel  may  grow  out  of  the  acceptance  of  an 
estate  is  inapplicable,  for  the  reason  that  under  such  circumstances 
there  is  no  estate  to  vest  in  or  be  accepted  by  the  grantee.''  In 
England,  where  this  dictum  of  Coke's  is  applicable,  there  can  be 
but  one  title,  at  any  one  time,  to  the  same  tract  of  land.  Adverse 
possession  under  a  claim  of  right  is  not  regarded  there  as  an 
estate,  and  the  notion  of  two  distinct  and  hostile  titles  running 
side  b}'  side,  which  was  once  familiar  to  the  professional  mind,  has 
little  or  no  place  in  the  present  system  of  conveyancing.  A  feoff- 
ment might  create  an  estate  in  the  feoffee,  where  none  exists  in 
the  feoffor,  that  would  endure  until  defeated  by  the  entry  of  the 
rightful  owner  and  be  made  the  subject  of  a  series  of  transfers, 
each  placing  the  assignor  in  privity  with  his  predecessors,  and 
rendering  them  liable  to  be  summoned  to  defend  his  title. 

§  848.  While  a  deed,  by  a  grantor  without  title,  may  give  rise 
to  an  estoppel,  it  cannot  confer  an  estate  capable  of  being  trans- 
ferred to  third  persons,  even  when  the  result  is  to  deprive  the 
assignee  of  the  means  of  obtaining  redress  for  the  failure  of  the 
grant.  Thus,  no  suit  can  be  maintained  on  the  covenants  for  title 
contained  iu  a  deed  from  a  mortgagor,  because  the  equitable 
ownership  cannot  supply  the  place  of  the  legal  title  Avhich  is  out- 
standing in  the  mortgage,  and  a  like  result  follows  when  there  is 
a  failure  or  Avant  of  title  from  any  canse.^     In   this  country,  a 

168;  Jones  v.  Reese,  65  Ala.  134;  Sniythe,  4  M.  «&  S.  347;  Doe  v.  Birch- 
Thompson  V.  Justice,  88  N.  C.  269;  more,  9  A.  6c  E.  662;  Doe  v.  Edwards, 
Goodwin  v.  Keney,  49  Conn.  282.  5  B.  &  A.  1065. 

'  Doe  V.  Barton,    11    A.  &  E.  307;  »  Sparrow  v.  Kingman,  1  N.  Y.  242. 

Doe  V.  Mills,  2  A.  &  E.  17;  Doe  v.  » Mayor  v.  Blamire,  8  East,  487. 


Estoppel  in  Pais.  977 

conveyance  attended  and  fortified  by  possession  confers  a  title, 
which,  however  weak  absolutely,  will  be  good  relatively  to  the 
parties  and  those  claiming  under  them,  until  brought  into  conflict 
with  some  superior  right.  The  assignees  of  the  grantee  are  sub- 
ject to  the  estoppel  of  the  grant,  and  may  sue  and  be  sued  upon 
covenants  contained  in  it,  and  the  various  mesne  conveyances  by 
which  the  estate  has  been  transferred,  and  this  is  equally  appli- 
cable in  a  case  where  the  action  is  founded  on  a  breach  of  war- 
ranty occasioned  by  the  entry  of  a  third  person,  under  a  para- 
mount title,  whicli  is  set  forth  in  the  declaration  ;  the  presumption 
being  that  an  estate  passed  to  the  grantee,  which,  however  defec- 
tive, were  sufficient  to  prevent  the  covenants  in  the  deed  from 
being  in  gross,  and  enable  them  to  run  to  subsequent  purchasers. 
Whether  an  estoppel  arises  where  a  grantor  has  not  a  good  title 
to  convey,  is  a  mixed  question  of  law  and  fact,  depending  on  the 
circumstances  of  the  case  in  which  it  arises." 

§  849.  Those  who  derive  title,  by  descent  or  purchase,  from 
the  same  source,  are  estopped  from  showing  that  either  the  right 
which  they  have  in  common,  is  defective  or  that  there  is  a  para- 
mount title,  outstanding  in  a  third  person.^  This  is  not  the  result 
of  what  is  properly  called  an  estoppel,  but  it  is  on  the  principle 
that  as  between  two  persons  claiming  under  the  same  vendor, 
preference  should  be  given  to  him  wlio  is  first  in  point  of  time, 
whether  the  vendor  had  or  had  not  good  title  to  the  premises 
conveyed.^  Thus,  if  A.  grant  and  convey  land  to  C.  that  he  has 
previously  conveyed  to  B.,  C  will  stand  j^riwjaycfc/d  in  the  same 
position  with  A.  and  is  estopped  from  denying  the  validity  of  the 
conveyance  to  B.  It  is  the  duty  of  every  vendor  who  sells  land 
tliat  he  owns  or  possesses,  to  give  the  grantee  possession  if  noth- 
ing more  ;  and  every  one  who  comes  in  or  holds  under  him,  as  his 

»  R.  R.  Co.    V.    Segcr,   4  Wis.  268;  Ellis  v.  Jeans,  7  Cal.  449;  Hill  v.  Rob- 

Nagk'c  V.  Ingorsoll,  7  Pa.  St.  185.  inson,  1  Strobh.   1;   Love  v.  Gates,  4 

2  Douglass   V.   Scott,   5   Ohio,    197;  Dev.  &  B.  363;  Carver  v.  Astor,  4Pet. 

F.isler  V.  Dngan,  8  Ohio,  107;   Ward  11;   Addi-son   v.    Crow,  5  Dana,   271; 

V.  Mcintosh,  13  Ohio  St.  231 ;  Norwood  Toiry  v.  Bank,  9  Paige,  649;  Bowdish 

V.  Marrow,  4  Dev.  &  B.  44G;   Garrett  v.  Dubuque,  38  Iowa,  341. 
V.  Lylc,  27  Ala.  .587;  Gillian,  v   Bird,  ^  Blight    v.     Rochester,    7    Wheat. 

8Ircd.  280;  Johnson  V.  Watts,  IJones,  535;  Ward  v.  Mcintosh,  12  Ohio  St. 

228;  Grant  v.  Cowan,  27  Ala.  58;  Rus-  231. 
sell  v.    Wickersham,    36    Barb.   306; 
Vol.  I.— 63 


978  Thk  Law  of  Estoppel. 

wife,  tenant,  or  ti^rantee,  will  be  bound  by  the  same  obliiiation, 
unless  he  can  show  that  not  only  the  grantor's  title  was  bad,  but 
that  he  held  or  has  acquired  a  better  one.'  A  widow  cannot 
rely  on  her  husband's  want  of  title  as  a  reason  for  keeping  his 
heirs  or  assigns  out  of  possession.''  Nor  an  heir  or  purchaser  deny 
the  seizin  of  the  vendor  or  ancestor  under  whom  he  claims  in  an 
action  brought  for  the  recovery  of  dower  by  the  widow.' 

§  850.  The  rule  that  parties  who  claim  under  or  by  virtue  of 
the  same  right  shall  not  dispute  the  title,  or  enter  into  contro- 
vers}'  as  to  its  merits,  is  only  applicable  as  long  as  they  claim 
under  it,  and  ceases  to  apply  when  either  of  them  obtains  a  par- 
amount title  from  another  source.  There  can  be  no  reason,  and 
in  fact  there  is  none,  why  a  vendee,  who  has  had  the  misfortune 
to  purchase  from  a  vendor  who  had  no  title  to  convey,  should 
not  protect  his  possession  by  obtaining  a  grant  or  lease  from  the 
true  owner ;  it  M'onld  be  certainly  a  harsh  doctrine  that  would 
compel  a  man  to  lose  the  benefit  of  a  good  title  by  accepting  a 
conveyance  from  one  which  turns  out  to  be  bad.  For  this  reason 
an  estoppel  created  by  a  community  of  title  extends,  as  a  general 
thing,  only  so  far  as  the  title  is  in  fact  common,  and  the  mere 
fact  that  both  parties  took  title  from  the  same  vendor  does  not 
estop  either  of  them  from  disclainiing  the  right  thus  derived  and 
relying  on  a  paramount  title.* 

§  851.  Possession  may,  notwithstanding  the  observations  made 
in  the  previous  section,  be  acquired  under  circumstances  which 
estop  the  right  to  rely  on  a  paramount  title  as  a  reason  why  it 
should  not  be  restored  to  the  person  from  whom  it  was  derived, 
and  when  this  is  the  case  the  estoppel  extends  beyond  the  parties, 
and  may  be  enforced  by  or  against  their  heirs  or  assigns.     A  ten- 

'  Bliikeny  V.  Ferguson,  20  Ark.  517;  Courtland  v.  Sauls,  1  Jones,  70;  Hays 

Van  Rensselaer  v.  Kearney,  11  How.  v.    Askew,  5  Jones,    13;   Coaklej'   v. 

297.  Perry,  8  Ohio  St.  844;  Owens  v.  Rcb- 

"  Grandy  v.  Bailey,  13  Ired.  221.  ins,  19  111.  545;  Has-ell  v.  Walker,  5 

'  Blakeny  V.  Ferguson,  20  Ark.  547;  Jones,  270;    Den  v.  Sharp,   4  Wash, 

Griffilli  V.  GrifiUh,  5  Harring.  5;  Will-  O.  C.  609;  Waife  v.  Duval,  21   Miss, 

iamsv.  Bennett,  4  Ired.  122;  Ward  v.  108;  Hughes  v.  Wilkinson,  28  Miss. 

Mcintosh,  12  Ohio  S.  231;  AVedge  v.  GOO;  Holden  v.  Andrews,  38  Cal.  119; 

Moore,  6  Gush.  8.  Blight  v.    Rochester,  7   Wheat.  535; 

•»  Love  V.  Gates.  4   Dev.  &  B.   403:  Smilh  v.  Otley,  26  Miss.  291. 


Estoppel  in  Pais.  979 

ant  cannot  set  up  a  deed  from  a  third  person  as  a  defense  to  an 
action  brought  on  the  lease,  or  for  the  recovery  of  the  Liud  by 
the  lessor,  or  those  claiming  under  him  as  purchasers,  and,  upon 
the  same  grounds,  a  man's  wife  or  children  cannot  use  the  pos- 
session they  have  derived  from  him  as  a  means  of  defeating  his 
grantee. 

§  852.  A  tenant  cannot  deny  his  landlord's  title.  This  rule 
of  estoppel  is  based  on  equitable,  rather  than  on  legal  grounds. 
It  did  not  exist  at  common  law,  unless  the  deed  was  by  indenture 
and  executed  by  the  tenant,  when  the  estoppel  arose  from  the 
seal,  and  not  from  the  tenancy.'  A  tenant  who  makes  an  agree- 
ment with  his  landlord  for  a  limited  period,  thereby  acknowledg- 
ing his  right  to  the  premises,  is  estopped  from  disputing  the 
landlord's  title,  under  an  outstanding  title,  held  by  himself  for  a 
longer  period,  of  which  the  landlord  has  no  notice.  Where  a 
tenant  goes  into  possession  under  a  void  lease,  he  will  be  deemed 
a  tenant  from  year  to  year,  and  his  payment  of  rent  from  time 
to  time  is  a  sufficient  proof  of  his  tenancy  on  which  to  recover 
rent  in  arrear.^ 

§  853.  A  tenant  cannot  deny  his  landlord's  title,  nor  set  up 
an  outstanding  paramount  title  in  himself  or  a  third  person,  in 
any  proceeding  to  enforce  tlid" obligation  of  the  lease  during  its 
continuance,  or  regain  possession  of  the  premises  after  the  term 
is  at  an  end.'     The  tenant,  and  those  coming  in  under  him,  are 

'  Sparrow  v.  Kingman,  1  N.  Y.  Baldwin,  9  N.  Y.  45;  Howell  v.  Ash- 
243;  Vernam  v.  Smith,  15  N.  Y.  329;  man,  2  K  J.  2G1;  Love  v.  Edmoud- 
Delancy  v.  Fox,  2  C.  B.  N.  S.  768;  son,  1  L-ed.  152;  Lundsford  v.  Alex- 
Bedford  V.  Kell}',  61  Pa.  St.  491.  ander,  4  Dev.  &  B.  40;    Lyme  v.  San- 

2  Wood  V.  Tate,  5  B.  &  P.  246;  ders,  4  Strobh.  196;  Mclutire  v.  Pat- 
Dean  V.  Pierce,  1  Camp.  466:  Mayor  ton,  9  Humph.  447;  Ogden  v.  Walker, 
V.  Till,  4  Biug.  75;  Doe  v.  Woodman,  6  Dana,  420;  Pope  v.  Harkins,  16  Ala. 
8  East,  228;  Rutland  v.  Proctor,  29  321;  Phelan  v.  Kelly,  25  Wend.  389; 
Vt.  93.  Giles  v.  Ebbsworlh,  10  Md.  333;  Stew- 

3  Jackson  v.Wheedou.l  E.  D.  Smith,  art  v.  Roderick,  4  W.  &  S.  188;  Wiu- 
141;  Galloway  v.  Ogle,  2  Binn.  417;  nord  v.  Robins,  3  Humph.  614;  Sharp 
Jackson  V.  Harper,  5  Wend.  248;  v.  Kelly,  5  Dcnio,  431;  Burke  v.  Hale, 
Cooper  V.  Smith.  8  Watts,  576;  Cal-  8  Ark.  428;  Winston  v.  Academy,  28 
lender  v.  Sherman,  5  Ired.  711;  Cauff-  Miss.  118;  Tondro  v.  Cushman,  5  Wis. 
man  v.  Congregation,  6  Binn.  62;  279;  Beckwlth  v.  Bent,  10  B.  Mou.  95; 
Jackson  V.  Stewart,  6  Johns.  54;  Jack-  Doe  v.  Challis,  6  E.  L.  &  Eq.  249; 
son  V.  Stiles,  1  Cow.  515;  Jackson  v.  Miles  v.  Knott,  12  G.  &  J.  454;  Fen- 


980 


The  Law  of  Estoppel. 


estopped  to  dispute  the  landlord's  title  so  long  as  the  lease  con- 
tinues, or  he  holds  over.' 

§  854.  It  was  an  early  rule  of  feudal  policj,  that  the  tenant 
should  not  be  permitted  to  deny  the  title  of  the  lord  from  whom 
he  had  received  investiture,  and  whose  liege  man  he  had  become; 
but  as  long  as  that  relation  existed,  the  title  of  the  lord  was  con- 
clusively presumed  against  the  tenant  to  be  perfect  and  valid. 
And  though  the  feudal  reasons  of  the  rule  have  long  since  ceased, 


wick  V.  Floyd,  1  H.  &  G.  174;  Estep 
V.  Woems,  6  G.  &  J.  303;  Doe  v.  Bar- 
ton, 11  A.  tt  E.  307;  Doe  v.  Sraytlie, 
4  M.  &,  S.  347 ;  Flemmiug  v.  Gooding, 
10  Bing.  549;    Alcboinc  v.  Gomme,  2 
Bing.  54;  Gravener  v.  Woodliouse,  7 
Moo.  278;  Cooke  v.  Loxley,  5  T.  R.  5; 
Lewis  V.  Willis,  1  Wils.  314;   Doe  v. 
Wiggins,   4  Q.    B.    367;    Morton    v. 
Wooils,  L.  R.  3  Q.  B.  Go8;  Fordyce  v. 
Young.  39  Ark.  135;  Purry  v.  House, 
Holt  M.  P.  C.  492;  Reynolds  v.  Lewis, 
59  Cal.  20;  Lataillarde  v.  Gas  Co.,  58 
Cal.  4;  Hawtsv.  Shaw,  100  Mass.  187; 
Tewksbury   v.  •:Magra{r,  33  Cal.  237; 
Cobb  V.  Arnold,  8  Met.  398;  Lyon  v. 
Wasbl)urn,    3    Col.    201;    Coburu   v. 
Palmer,  8  Cusb.  124;  Arnold  v.  Wood- 
ward, 4   Col.  249;   Towne  v.  Butter- 
.  field,  97  Mass.    105;    Campau  v.  Laf- 
t'erty,  43  Micb.  429;  Burncy  v.  Cbap 
man,  5  Pick.  124;   Rogers  v.Boyuton, 
57   Ala.    501;  Parker   v.    aSIanson.  12 
Xeb.  419;  George  v.  Putney,  4  Cusb. 
351;  Campbell  v.  Hampton,  11  Lea, 
440;   Doe  v.    Heatb,  13   Ired.  L.  489; 
Boardiiiau  v.  Tbompson,  3   Montana, 
387;  Gage  v.  Campljell,  131  Mass.  506; 
Fusselman   v.    WDrtbiugtou.    14    111. 
135;   Helena   v.  Turner,   36  Ark.  57; 
Frazer  v.  Robinson,  42  Mo.  121;   Ep- 
stein V.  Greet,  85  lud.  372;  Hardy  v. 
Akerly,    57    Barb.    148;    Plumcr    v. 
Plumer,  30  N.   H.   558;    Willisou   v. 
Watkins.  3  Pet.  47;  Doe  v.  Mills,  2  A. 
&  E.  17;  Taylor  V.  Xeedbam,  2  Taunt. 
278;   Doe  v.  Morris,  6  B.  &  C.  41 ;   R. 
R.  V.  West,  L.  R.  2  C.  P.  553;  Lewis 


V.  Adams,  61  Ga.  559;  Rennie  v.  Rob- 
ertson, 1  Bing.  147;  Doe  v.  Wbitroe, 
1  Dow.  &  R.  X.  P.  C.  1;  People  v. 
Angel,  61  How.  Pr.  159. 

'  Bertram  v.  Cook,  44  Micb.  397; 
Newton  v.  Roe,  83  Ga.  163;  Lowe  v. 
Emerson,  48  HI.  160;  Abbott  v.  Cro- 
martie,  72  X.  C.  292;  Hugbes  v.  Watt, 
28  Ark.  153'  Longfellow  v.  Longfel- 
low, 61  3Ie.  590;  Brenner  v.  Bigalow, 
8  Kas.  496;  Prevot  v.  Lawrence,  51  X. 
Y.  219;  Phelps  v.  Taylor,  23  La.  Ann. 
585;  Jlattis  v.  Robiuson,  1  Neb.  3; 
Emerick  v.  Taveuer,  9  Gratt.  224;  Al- 
len V.  Bartlett,  20  W.  Va.  46;  Camp- 
bell V.  Fetterman,  20  W.  Va.  398; 
Bknk  V.  Pbalen.  12  R.  L  495;  Trabue 
V.  Ramage,  80  Ky.  323;  Phipps  v. 
Scuithoipe,  1  B.  «&  A.  50;  Dancer  v. 
Hastings,  4  Bing.  2;  Flemming  v. 
Gooding.  10  Bing.  549;  Francis  v.  Dee, 
4  M.  &  W.  331 ;  Jochen  v.  Tibbells,  50 
Micb.  33;  Bertram  v.  Cook,  32  ilich. 
518;  Wbitford  v.  Crooks,  50  Mich.  40; 
Jones  V.  Dove,  7  ^-reu.  467;  Wilson 
V.  Hubbell,  1  Penny-packer,  413  ; 
Cooper  V.  Smith,  8  Watts,  536;  Balls 
V.  Westwood,  2  Camp.  12;  Dimond  v. 
Enoch,  1  Add.  356;  Eister  v.  Paul,  54 
Pa.  St.  19G;  Morey  v.  Rogers,  8  Phila. 
297;  CafTrey  v.  McFarland,  1  Phila. 
555;  Lj'on  v.  Washburn,  3  Col.  201; 
Campau  v.  Laferty,  43  Mich.  429; 
Morrison  v.  Bassett,  26  3Iinn.  235; 
Emmert  v.  Hays,  89  111.  11;  Farmer 
V.  Pickens,  83  N.  C.  549;  Betts  v. 
Worth,  32  N.  J,  E.  82. 


Estoppel  in  Pais.  981 

yet  otlicr  reasons  of  public  policy  have  arisen  in  their  place, 
thereb}'  preserving  the  rule  in  its  original  vigor.  A  tenant  there- 
fore by  indenture,  is  not  permitted  at  this  day,  to  deny  the  title 
of  his  lessor,  while  the  relation  thus  created  subsists.  "  It  has 
been  ruled  often,"  said  Dampier,  J.,  in  the  year  1815,  '*  that  neither 
the  tenant,  nor  any  one  claiming  by  him,  can  dispute  the  land- 
lord's title.  This  I  believe  to  have  been  the  rule  for  the  last 
twenty-five  years,  and  I  remember  was  so  laid  down  by  Buller, 
J.,  upon  the  western  circuit.  This  rule  then  having  no  founda- 
tion in  the  old  common  law,  it  has  been  well  suggested  that  "  its 
origin  must  be  sought  in  tlie  general  principle,  that  where  a  party 
has  kept  or  obtained  the  possession  of  land  which  he  otherwise 
would  not  have  had,  by  means  of  an  agreement  or  understanding, 
he  shall  be  estopped  from  setting  forth  anything  in  opposition  to 
its  terms  or  intent  in  a  suit  brought  in  order  to  recover  such  pos- 
session.' This  was  of  necessity  called  into  being  by  that  feature 
of  the  action  of  ejectment  which  requires  an  absolute  possessory 
title  in  the  plaintiff,  and  makes,  in  its  absence,  the  mere  fact  of 
possession  decisive  in  favor  of  the  defendant.  It  never  could  be 
pretended  tliat  in  general,  the  acceptance  by  the  grantee  of  a  con-, 
veyance  of  an  estate  from  the  grantor  precluded  the  former  from 
denying  the  title  of  the  latter,  since  if  such  were  the  rule,  all  the 
covenants  for  title  would  be  at  once  useless,  as  the  essence  of  a 

'  Hilburn    v.    Fogg,    99  Mass.    11;  v.  Robbins,  3  Humph.  614;  Jackson 

Towne  v.  Butterfield,  97   Mass.  106;  v.  Stewart,  6  Johns.  54;    Jackson  v. 

Franklin  V.  Merida,  35  Cal.  558;  Biglcr  Stiles,  1  Cow.  575;  Pope  v.  Ilarkius, 

V.  Furman,  58  Barb.  555;  DehiDcy  v.  16  Ala.  331 ;  Piielon  v.  Kelly,  25  Wend. 

Fox,   2   C.  B.  N.  S.  775;  Ins.  Co.  v.  389;   Share   v.    Kelly,   5   Denio,  431; 

McKensie,  IOC.  B.  (N.  S.)871;  Doc  v.  Howell  v.  Ashmon,  2  N.  J.  201;  IMc- 

Bartou,   11   A.  &  E.  307;  Longfellow  Intyre    v.    Pattou,    9    Humph.-    447; 

V.  Longfellow,  54  Me.  249;  Hawes  v.  Burke  v.  Hale,  8  Ark.  428;  Lyme  v. 

Shaw,  100  ]\Iass.  189;  Lowe  v.  Emer-  Sanders,   4   Strobh.    196;   Jackson   v. 

son,  48111.  100;  Cauf man  V.  Congrega-  Baldwin,    9    N.    Y.  45;    Winston   v. 

tion,G  Biim.  02;  Jackson  V.  Harper,  5  Academy,    28   Miss.   118;   Tondro   v. 

Wend.  240;  Cooper  V.  Smith,  8  Watts,  Cushman,   5  Wis.    279;    Sanders    v. 

536;   Galloway  V.  Ogle.  2   Binn.  417;  Moore,    14  Bush,    97;    Giles   v.   Ebs- 

Stewart  v.  Roderick,  4  W.  &  S.  188;  worth,     10    Md.     333;     Jackson     v. 

Lundsford  v.  Chandler,  4  D.  &  B.  40;  Wheedon.  1  E.  D.  Smith,  141;  Territt 

Callender  v.    Sherman,    5   Ired.   711;  v.  Coveohoven,  79  N.  Y.  400;   Hodg- 

Ogden  V.  Walker,  0  Dana,  420;  Love  sou  v.  Hooper,  3  E.  &  E.  149;  Huss 

V.  Edmundson,  1  Ired.  152;  Winnerd  man  v.  Wilke,  50  Cal.  250. 


982 


The   Law  of  Estoppel. 


breach  of  these  covenants  is  the  existence  of  a  title  or  a  possession 
paramount  to  that  of  tlie  grantor. 

§  855.  Though  the  origin  of  this  rnle  is  involved  in  some 
obscnrity,  it  is  traceable  to  feudal  tenures,  where  the  tenant  was 
boiind  to  the  landlord  by  ties  not  much  less  sacred  than  those  of 
allegiance  itself.  In  this  country  this  doctrine  is  recognized  as  a 
branch  of  the  law  of  landlord  and  tenant.'  The  policy  of  the  law 
will  not  allow  a  tenant,  under  such  circumstances,  to  be  guilty  of 
a  breach  of  good  faith  in  denying  a  title,  by  acknowledging  and 
acting  under  which,  he  originally  obtained,  and  has  been  permitted 
to  hold  possession  of  the  premises.''  Thus  where  a  lessee,  whose 
duty  it  was  to  pay  the  taxes  assessed  upon  the  premises,  sufiPered 
the  same  to  be  sold  for  default  of  payment,  and  purchase  the  same 
at  a  public  sale,  can  not  set  up  a  title  thus  acquired,  against  his 
landlord.'  This  would  not  be  the  case  if  there  were  no  fault  on 
his  part  in  not  making  payment  of  the  taxes.*     This  would  not 


'  Bliglit  V.  Rochester,  7  Wheat.  535. 

«  Cook  V.  Loxley,  5  T.  R.  4  ;  Balls 
V.  West  wood,  3  Camp.  11;  Hodges  v. 
Shields,  18  B.  Mon.  830;  Miller  v. 
McBricr,  14  S.  &  R.  382;  Brown  v. 
Dj'siugor,  1  Rawle,  408;  Ball  v.  Lively, 
2  J.  J.  Marsh.  181;  Dezell  v.  Odell,  3 
Hill.  219;  Pacquetel  v.  Ganche.  17  La. 
Ann.  G3;  Sientes  v.  Odier,  17  La.  Ann. 
153;  Trayer  v.  Society,  20  Pa.  St.  60; 
Green  v.  Munson,  9  Vt.  37  ;  De 
Rutzeu  V.  Lewis.  5  A.  &  E.  277; 
Tuttle  V.  Reynolds,  1  Yt.  80;  Hall  v. 
Butler,  10  A.  &  E.  1004;  Lord  v. 
Bigalow,  8  Vt.  445;  Hodsou  v.  Sharp, 
10  East,  350;  Hoen  v.  Simmons,  1 
Cal.  119;  People  v.  Stiner,  45  Barh. 
56;  Miihollin  v.  Jones,  7  Ind.  715; 
Grant  v.  White,  42  Mo.  285;  Dunshee 
V.  Grundy,  15  Gray,  314;  Randolph  v. 
Carleton,  8  Ala.  GOO;  Bowdish  v. 
Dubuque,  33  Iowa,  341;  Dclaney  v. 
Fox,  2  C.  B.  (N.  S.)  708;  Gray  v.  .John- 
son, 14  N.  H.  414;  Pope  v.  Harkins, 
16  Ala.  322;  Ansley  v.  Longmire,  2 
Kerr.  N.  B.  322;  Allen  v.  Chatfield,  8 
Minn.  435;  Byrne  v.  Beeson,  1  Doug. 


(Mich.)  170;  Blanchard  v.  Tyler,  12 
Mich.  345;  Swartzwelder  v.  Bank,  1  J. 
J.  Marsh.  38;  Bailey  v.  Kilburn,  10 
Met.  176;  Miller  v.  Lang.  99  Mass.  13; 
Doe  V.  Mills,  2  A.  &  E.  17;  Sharp  v. 
Keely,  5  Denio,  431;  Phipps  v. 
Sculthorpe,  1  B.  &  A.  50;  Doe  v, 
Pegge,  1  T.  R.  759;  Flemming  v. 
Goodiri!!",  lOBinsr  549;  Schumaker  v. 
Hocvelc;,  22  Wis.  43;  Benedict  v. 
Morse,  10  Met.  223;  Jackson  v.  Hin- 
man,  10  Johns.  292;  Ingraham  v. 
Baldwin,  9  N.  Y.  45;  Cornish  v. 
Searell,  8  B.  &  C.  471;  Jackson  v. 
Harper,  5  Wend.  246;  Fuller  v.  Sweet, 
30  Mich.  237;  Goodsell  v.  Lawson,  42 
Md.  348;  Anderson  v.  Crichter,  11  G. 
&  J.  450;  Stott  V.  Rutherford,  92  U.  S. 
107. 

3  Haskell  v.  Putnam,  42  ]\Ie.  244 
Lucas  V.  Brooks,  18  Wall.  436 
O'Halloran  v.  Fitzgerald,  71  111.  53 
Smith  V.  Smith,  1  Harp.  Ch.  160 
Robert  v.  Mosely,  64  Mo.  507;  Frier- 
son  V.  Branch,  30  Ark.  453;  Caruthers 
V.  Weaver,  7  Kas.  110. 

*  Bettison   v.    Budd,    17  Ark.  546; 


Estoppel  tin  Pais. 


983 


be  inconsistent  with  the  demise.  Neither  will  it  allow  him  to 
complain  of  a  want  of  title  in  his  lessor,  so  long  as  he  is  himself 
undisturbed."  A  lessee  in  possession  can  not  escape  payment  of 
rent  to  his  landlord  by  taking  a  lease  from  a  stranger,"  and  if  his 
landlord  holds  under  a  tax  deed,  he  can  not  buy  in  or  acquire  the 
interest  of  a  minor,  having  the  right  of  redemption,  and  set  it  up 
against  his  lessor.' 

§  856.  All  that  the  law  requires  is,  that  during  the  time 
which  the  tenant  actually  holds  by  permission  of  the  landlord, 
the  landlord's  title  shall  uot  be  disputed.  In  technical  phrase, 
the  tenant  shall  not  be  allowed  to  plead,  to  his  landlord's  action, 
nil  halmit  in  tenementis^  and  this  applies,  though  the  tenant 
holds  under  a  parol  demise  fi-om  a  tenant  at  will  ;  he  is  estopped 
to  deny  his  lessor's  title.°  This  is  equally  applicable  between  the 
lessee  and  the  assignee  of  his  lessor." 

§  857.  A  tenant  cannot  set  up  a  title  adverse  to  the  lessor's, 
either  in  himself  or  a  third  party,  inconsistent  with  the  lessor'^s 
right  to  grant  the  original  lease,''  or  impeach  the  validity  of  the 


Miller  v.  McBrier,  14  S.  &  R.  382 
Brown  v.  Dysinger,  1  Rawie,  408 
Hockinbury  v.  Snyder,  2  W.  &  S.  240 
Newman  v.  Rutter,  8  Watts,  51;  Isaac 
V.  Clark,  2  Gill,  1;  Miller  v.  Bonsadon, 
9  Ala.  317;  Nell  is  v.  Lathrop,  22 
Wend.  121;  Carnley  v.  Stanfield,  10 
Tex.  546;  Elliott  v.  Smith,  23  Pa.  St. 
131;  Georce  v.  Putney,  4  Gush.  358; 
Weicbselbaum  v.  Curlett,  20  Kas.  709. 

'  Ankeuy  v.  Pierce,  1  111.  202;  Mor- 
gan V.  Lamed,  10  Met.  50;  George  v. 
Putney,  4  Cusli.  351 ;  Vance  v.  John- 
son, 10  Humph.  214;  Cuthberstou  v. 
Irving,  6  11.  &  X.  135. 

^  Parker  v.  Nanson,  12  Neb.  419. 

3  Stout  V.  jMerrill,  35  Iowa,  47. 

*  Boston  V.  Binney,  11  Pick.  8;  Peo- 
ple V.  Stiner,  45  Barb.  56. 

'  Coburn  v.  Palmer,  8  Gush.  124; 
Towne  v.  Buttertield,  97  Mass.  105. 

«Tuttle  V.  Reynolds,  1  Vt.  80; 
Funk's  Lessee  v.  Kincaid,  5  Md.  404. 

'  Reed  v.  Shepley,  6  Vt.  602;  Syme 


V.  Saunders,  4  Strobh.  196;  Chambers 
V.  Pleak,  6  Dana,  426;  Plumer  v. 
Plumer,  30  N.  H.  558;  Hood  v. 
Mather,  2  A.  K.  Marsh.  553;  Jackson 
V.  Whcdon,  15  N.  Y.  141;  Hardisty 
V.  Glenn,  32  111.  62;  Balls  v.  West- 
wood,  2  Camp.  11;  Morse  V.  Roberts, 
2  Cal.  515;  Willison  v.  Watkins,  3 
Pet.  43;  Milhollin  v.  Jones,  7  Ind. 745; 
Doe  V.  Phillips.  1  Kerr.  N.  B.  533; 
Ryerson  V.  Eldred,  18  Mich.  12;  Thrall 
V.  Omaha,  &c.  Co.,  5  Neb.  295;  Stag 
V.  Eureka  Co.,  56  Mo.  317;  Morton  v. 
Woods,  3  Q.  B.  658;  Winston  v.  Pres- 
ident, 28  Miss.  118;  Hood  v.  Mathis, 
21  Miss.  308;  Ramires  v.  Kent,  2  Cal. 
558;  Russell  v.  Titus,  3  Grant  Gas. 
295;  Elliott  v.  Smith,  23  Pa.  St.  131; 
]\lclntire  v.  Patten,  9  Humph.  447; 
Burke  v.  Hale,  9  Ark.  328;  Connelly 
V.  Childs,  2  A.  K.  Marsh.  242;  Wat- 
son V.  Alexander,  1  Wash.  340;  Jack- 
son v.  Stewart,  6  Johns.  34;  Tondro 
V.  Cushman,  5  Wis.  279;  Jackson  v. 


984 


The  Law  of  EsTorrKL. 


landlord's  title  at  tlie  time  of  the  cominencetncnt  of  the  demise,' 
even  though  this  title  may  have  been  gained  during  the  continn- 
anee  of  the  lease,'  by  purchase  from  a  third  person,'  or  the  lessee 
was  in  possession  when  he  accepted  the  lease.*  Nor  is  the  tenant 
any  more  at  liberty  to  deny  the  title  of  the  heir,  where  the  lessor 
dies  during  the  term,  than  to  deny  the  title  of  the  lessor  him- 
self ;'  and  it  applies  to  all  persons  to  whom  the  title  has  come 
from  the  landlord/  But  this  estoppel  is  not  without  its  limita- 
tion. After  the  expiration  of  the  lease,  the  lessee  is  no  longer 
estopped  by  it  to  assert  an}'  right  which  he  may  have,  though  it 
be  of  such  a  character  that  he  could  not  do  so  while  the  relation 
of  landlord  and  tenant  continued.' 

§  858.  But  where  the  lessee  is  induced  to  accept  possession 
from  his  lessor  by  fraud  or  mistake,*  where  he  is  deprived  of  the 
possession  derived  from  his  lessor,  by  some  one  who  has  a  para- 
mount title,  or  has  yielded  the  same,  when  claimed,  to  one  hav- 
ing such  title,  without  having  procured  this  to  be  done,  and  with- 
out violating  good  faith  ;°  or  if  the  lessor's  title  has  expired  or 


Harper,  5  Wend.  246;  Bank  v.  Mer- 
sereau,  3  Barb.  Cb.  528;  Jackson  v. 
Rowland,  6  Weud.  66G. 

'  Dolancy  v.  Fox,  2  C.  B.  (N.  S.)  777; 
Despard  v.  Walbridge,  15  N.  Y.  374. 

=  Galloway  v.  Ogle,  2  Binn.  468; 
Sharpe  V.  Kelley,  5  Denio,  4:J1 ;  Wil- 
son V.  Bmitb,  5  Ycrg.  379;  Drane  v. 
Gregory,  3  B.  Mou.  G19;  Elliot  v. 
Smilb.  23Pa.  St.  131;  Clemm  v.  Wil- 
cox, 15  Ark.  102;  Grabam  v.  Moore, 
4S.  &R.  467;  Jackson  v.  Wbitford, 
2  Car.  215;  Eislcr  v.  Paul,  54  Pa.  St. 
196;  Ilatcbv.  Bullock,  57  N.    II.  15. 

"  Marley  v.  Bodger-s,  5  Ycrg.  217; 
Stout  V.  ilerrill,  35  Iowa,  47. 

*  McConneil  v.  Bowdry,  4  Mon. 
392;  Ilolloway  v.  Galliac,  47  Cal.  474; 
Pieralt  v.  Ginocbio.  47  Cal.  459. 

*  Blaulin  v.  Wbitaker,  11  llunijili. 
313;  Haines  v.  Shaw,  100  JIass.  87; 
Ronaldsou  v.  Tabor,  43  Ga.  230. 

6  Russell  V.  Ailard,  18  N.  II.  225; 
Lundsford  v.  Alexander,  4  Dev.  &  B. 
40. 


■>  Child  V.  Cbappel,  9  N.  Y.  246; 
Jackson  v.  Rowland,  6  Wend.  666. 

8  Miller  v.  Bonsadon,  9  Ala.  317; 
Jackson  v.  Spear,  7  Wend.  401; 
Thayer  v.  Society,  20  Pa.  St.  60;  Tisoa 
V.  Yawn,  15  Ga.  491;  Alderson  v. 
Miller,  15  Gratt.  279;  Tewksbury  v. 
Magraff,  33  Ca!.  237;  Ins.  Co.  v.  Mc- 
Kensie,  10  C.  B.  (N.  S.)  871;  Clee  v. 
Seaman,  21  Mich.  297;  Chiridge  v. 
McKensie,  4  M.  &  G.  154;  Franklin 
V.  Merida,  35  Cal.  558;  Swift  v.  Dean, 
11  Vt.  323;  Sbultz  v.  Elliott,  11 
Humph.  183;  Higgins  v.  Turner,  61 
:^Io.  239;  Miller  v.  McBrier,  14  S.  & 
R.  382  ;  Mays  v.  Dwight,  82  Pa.  St. 
462;  Hamilton  v.  Marsden,  6  Binn. 45; 
Ingraham  v.  Baldwin,  9  N.  Y.  45: 
Evans  v.  Bidwell,  76  Pa.  St.  497; 
Brown  v.  Dysinger,  1  Rawlc,  408; 
Baskin  v.  Seechrist,  6  Pa.  St.  154; 
Hockenbury  v.  Snyder,  2  W.  &  S. 
240;  Bigler  v.  Furman,  5«  Barl).  545. 

^  Sims  V.  Salters,  3  Denio,  214; 
Whalin    v.    White,    25    N.   Y.   465; 


Estoppel  In  Pais. 


985 


been  extinguished  since  the  lessee's  term  began,  and  the  lessee 
has  an  independent  right  to  the  possession,  the  latter  may  avail 
liimself  of  it,  showing  thereby  that  the  lease  under  which  he 
held  had,  in  fact,  been  determined  ;'  or  after  eviction  bj'  one 
having  a  paramount  title,  he  is  excused  from  paying  I'ent.''  ^But 
if  a  tenant  yield  to  a  writ  of  possession,  which  does  not  run 
against  him  or  his  landlord,  and  then  attorn  to  the  demandant  in 
such  writ,  he  cannot  set  up  this  in  defense  against  his  landlord/ 
If  he  purchases  a  better  title  than  that  of  his  lessor,  he  must 
surrender  possession  to  his  lessor  before  he  seeks  to  avail  himself 
of  his  new  title  against  his  landlord. 


Evertseii  v.  Sawyer,  2  Wend.  507; 
Nellis  V.  Lathrop,  22  Wend.  121; 
Gartwell  v.  Miller,  1  Sand.  516;  St. 
John  V.  Palmer,  5  Hill,  599;  Green- 
vault  v.  Davis,  4  Hill,  46iJ;  Poole  v. 
Whilt,  15  M.  &  W.  571 :  Gallaber  v. 
Bennett,  38  Tex.  291. 

'  Jackson  v.  Rowland,  6  Wend.  6GG; 
Tilghmauv.  Little,  13  111.  241;  Wild 
V.  Serpen,  10  Gratt.  415;  Hopcralt  v. 
Keys,  9  Bing.  613;  England  v.  Slade, 
4  T.  R.  682:  Grundin  v.  Carter,  99 
Mass.  15;  Hillburn  v.  Fogg,  90  Mass. 
11;  Doev.  Edwards,  5  B.  &  A.  1065; 
Doe  V.  Barton,  11  A.  &E.  307;  Mount- 
Ley  v.  Collier,  1  E.  &  B.  630;  London, 
&c.  Co.  V.  West,  L.  R.  2  C.  P.  553; 
Palmer  v.  Bowker,  106  Mass.  317; 
Stout  V.  Merrill,  35  Iowa,  47;  Long- 
fellow V.  Longfellow,  54  Me.  249; 
Shields  v.  Lozear,  34  N.  J.  490;  Ins. 
Co.  V.  McKensie,  10  C.  B.  (N.  S.)871; 
Walton  V.  Waterhouse,  2  Sand.  418; 
Brudnell  v.  Roberts,  2  Wils.  143; 
Franklin  v.  Carter,  1  C.  B.  757;  Neave 
V.  Moss,  1  Bing.  360;  Pope  v.  Biggs, 
9  B.&,  C.  251;  Downs  v.  Cooper,  2  Q. 
B.  256;  Langl'ord  v.  Selmes,  3  K.  & 
J.  220;  Doe  v.  Watson,  2  Stark.  230; 
Waddilove  v.  Barnett,  2  Bing.  N.  C. 
528;  Ryerss  v.  Farwell,  9  Ba.rb.  615; 
Wolf  V.  Johnson,  30  Miss.  516:  Homer 
V.  Leeds,  25  JST.  J.  T,.  1Q6;  Franklin 
V.  Palmer.  50  HI.  202-  DuU'  v.  Wilsan, 


69  Pa.  St.  316;  Doe  v.  Seaton,  2  C.  M. 
&  R.  728;  Tewksbury  v.  Magraff,  33 
Cal.  237;  Bigler  v.  Furman.  58  Barb. 
5.55;  Hoag  v.  Hoag,  35  N.  Y.  471; 
Delaney  v.  Fox,  2  C.  B.  (N.  S.)77o; 
Doe  V.  Barton,  11  A.  &  E.  307;  Cla- 
ridge  v.  McKensie,  4  M.  &  G.  151. 

^  Marsh  v.  Butterworth,  4  Mich. 
575;  Doe  v.  Barton,  11  A.  &  E.  307; 
Hawkes  v.  Orton,  5  A.  &  E.367;  Em- 
ery V.  Barnett,4  G.  B.  (N.  S.)423;  Doe 
V.  Brown,  7  A.  &  E.  447;  Knight  v. 
Cox,  18  C.  B.  645;  Kane  Co.  v.  Har- 
rington, 50  111.  240;  Mayor  v.  Whitt, 
15  M.  &,  W.  577;  Shields  v.  Lozear, 
34  N.  J.  490;  Lowe  v.  Emerson,  48 
111.  160  ;  Miller  v.  Lang,  99  Mass. 
13;  Delaney  v.  Fox,  2  C.  B.  (N.  S.) 
775;  Ililburn  v.  Fogg,  99  Mass.  11; 
S'.out  V.  Merrill,  35  Iowa,  47;  Town 
V.  Butterfield,  lUO  Mass.  189. 

^  Calderwood  v.  Pysev,  31  Cal.  333; 
Simmons  v.  Robertson,  27  Aik.  50  ; 
Leach  v.  Koenig  55  Mo.  452;  Belfour 
V.  Davis,  4  P.  &  B.  3Q0. 

*  Hodges  V.  Shields,  18  C.  Mon.832; 
Balls  V.  Westwoods,  2  Camp.  11; 
Morgan  V.  Lamed,  10  Met.  50;  Miller 
V.  Lang,  9Q  Mass.  13,  O'Halloran  v. 
Fitzgerald,  n  111.  53;  Town  v.  But- 
terfieid  &7  Mass.  105;  Morse  v.  God- 
dard,  13  Met.  177;  Hilbourn  v.  Fogg, 
S9  M&ss.  11. 


986 


TiiK  Law   of  Estoppel. 


§  859.  But  still,  if  a  tenant  enters  under  liis  lease,  and  con- 
tinues to  occupy  without  what  would  be  tantamount  to  an  evic- 
tion, he  cannot,  in  an  action  to  recover  the  rent,  show  either  that 
his  lessor  had  no  title  when  he  made  his  lease,  or  that  his  title 
has  determined  since  the  making  of  his  lease.'  Nor  can  he  set 
up  in  defense  to  an  action  for  rent  that  the  lessor  holds  under  a 
grant  which  is  void  as  ngainst  the  creditors  of  his  grantor,  because 
made  to  defraud  them.^  One  who  has  taken  possession  under  a 
lease  cannot  dispute  his  landlord's  title,  or  make  a  valid  attorn- 
ment to  a  third  person,  nor  during  his  tenancy  can  he  buy  in  an 
outstanding  title  without  his  landlord's  consent ;  he  carf  do  no 
act  inconsistent  with,  or  which  could  change  the  relations  be- 
tween himself  and  his  landlord,  without  first  yielding  and  deliv- 
ering up  to  the  latter  the  possession  acquired  from  liim,  or  an 
equivalent  effected  by  the  tenant,  before  lie  can  set  up  another 
title.' 

§  800.  The  rule  which  estops  the  tenant  from  relying  on  the 
landlord's  want  of  title  as  a  defense  to  an  action  brought  for  the 
recovery  of  the  rent,  is  founded  on  special  and  limited  causes. 
While  the  tenant  is  estopped  from  denying  tlie  title  of  his  land- 
lord in  real  or  possessory-  actions  brought  for  the  recovery  of  the 
land,  the  estoppel  is  manifestly  equitable  and  not  legal,  and  it  had 


'  Syme  v.  Sanders,  4  Strobh.  196; 
Sncod  V.  Jenkins,  8  Ired.  27;  Den  v. 
Ashmore,  23  N.  J.  L.  261;  Morse  v. 
Roberts,  2  Cal.  515;  Naglee  v.  Inger- 
soll,  7  Pa.  St.  185. 

•2  McCurdy  v.  Smith,  35  Pa.  St.  108. 

3  Porter  v.  Maytield,  21  Pa.  St.  264; 
McGinnis  v.  Porter,  20  Pa.  St.  80; 
Thompson  v.  Clark,  7  Pa.  St.  62; 
Brown  v.  Keller,  32  111.  155 ;  Russell 
V.  Erwin.  ;i8  Ala.  50;  Bertram  v. 
Cook,  32  :\Iich.  518;  Hughes  v.  Watt, 
28  Ark.  153;  Brown  v.  Keller,  32  III. 
151;  Ryeraon  v.  Eldrid,  18  Mich.  12; 
Patterson  v.  Hansel,  4  Bii.sh,  654; 
Stacy  V.  Bostwick,  48  Vt.  192;  Mattis 
V.  Robiusou,  1  Neb.  3  ;  Ileyer  v. 
Beatty,  76  N.  C.  28;  Zeller  v.  Eckert, 
4  How.  295;  Hodges  v.  Shields,  18 
B.  .Mon.  830:  Abbott  v.  Cromartie,  72 


N.  C.  292;  Agar  v.  Young,  1  C.  &  M. 
78;  Mountney  v.  Collier,"  1  E.  &  B. 
630;  Anderson  v.  Smith,  63  III.  120; 
Ilawesv.  Shaw,  100  Mass.  189;  Tewks- 
bury  V.  IVIagraff,  33  Cal.  237;  Morse 
V.  Goddard,  13  Met.  177;  Meyers  v. 
Kocnig,  5  Neb.  419;  Miller  v.  Lang. 
99  Mass.  13;  ]\Io!gan  v.  Earned,  10 
Met.  50;  Doe  v.  Roe,  33  Ga.  163; 
Lowe  V.  Emerson,  48  111.  160;  IJil- 
bourn  v.  Fogg,  99  Mass.  11;  Wilson 
V.  James,  79  N.  C.  349  ;  Doe  v. 
Smythe,  4  M.  &  S.  347;  Longfellow 
V.  Longfellow,  54  Me.  249;  Emery  v. 
Barnett,  4  C.  B.  (N.  S.)  428;  Doe  v. 
Austin,  9  Bing.  41;  Towne  v.  Butter- 
field,  97  Mass.  100;  Ins.  Co.  v.  Mc- 
Kensie,  IOC.  B.  (IN.  S.)871;  Wilson 
V.  Hubbell,  1  Pennypacker,  413. 


Estoppel  in  Pais.  987 

not  become  an  absolute  or  well  settled  rule  until  about  the  end  of 
the  last  century,  although  it  was  introduced  at  a  much  earlier 
period.  The  principle  of  estoppel  between  lessor  and  lessee  is 
well  established  and  ought  to  be  maintained.  The  title  of  the 
lessee  is  in  fact  the  title  of  the  lessor.  He  comes  in  by  virtue  of 
it,  holds  by  virtue  of  it,  and  rests  upon  it  to  maintain  and  justify 
his  possession.  It  is  a  part  of  the  very  essence  of  the  contract 
under  which  he  claims  that  the  paramount  ownership  of  the  lessor 
shall  be  acknowledged  during  the  continuance  of  the  lease,  and 
possession  shall  be  surrendered  at  the  expiration.  He  cannot  be 
allowed  to  controvert  the  title  of  the  lessor  without  disparaging 
his  own,  and  he  cannot  set  up  the  title  of  another  without  violat- 
ing the  contract  by  which  he  obtains  and  holds  possession,  and 
breaking  that  faith  which  he  has  pledged  and  the  obligation 
which  is  still  continuing  in  full  operation.'  The  estoppel  is  not 
confined  to  the  original  parties  to  the,  lease,  but  extends  to  all 
who  come  in  under  the  tenant,^  or  take  by  descent  or  purchase 
from  the  landlord,'  and  applies  in  actions  brought  for  the  recovery 
of  rent,^  as  well  as  in  those  which  are  instituted  to  obtain  posses- 
sion of  the  premises  after  the  end  or  other  determination  of  the 
term,''  and  will  ])e  enforced  in  a  summary  proceeding  for  unlaw- 
ful detainer,  as  well  as  in  a  more  formal  action, °  and  operates 
where  the  defect  of  the  landlord's  title  appears  from  his  own  evi- 

>  Blight  V.  Rochester,  7  Wheat.  555;  »  Tuttle    v.    Reynolds,    1   Vt.    80; 

Phelps  V.    Taylor,    23   La.  Ann.  585;  Blantia  v.  Whitakor,  11  Humph.  313; 

Brenner  v.  Bigel()w,8  Kas.  497;  Kluge  Cutlibertsou  v.  Irving,  4  H.  &  N.  742. 

V.  Lachenour,  12  Ired.  180;  Lecatt  v.  *  Gray   v.    Johnson,  14  N.  H.  414; 

Stewart,  2  Stew.  471.  Pope  v.  Harkins,  16  Ala.  321 ;  Kendall 

-  Rose  V.  Davis,  11  Cal.  133;  Blak-  v.  Garland,  5  Cash.  74;  Foster  v.  Bal- 

cnny  V.  Ferguson,  20  Ark.   547;  Pat-  ance,  10  111.  41;  Fussellman  v.  AVorth- 

ten  V.  Deshon,  1   Gray,  325;  Lane  v.  ingtou,  14  111.  135. 

Orsment,  9  Yerg.  86;  Doe  v.  Austin,  =  Coburn   v.   Palmer,  8   Cush.   124; 

9  Bing.  41;  Emery  v.  Barnett,  4  0.  B.  Swan  v.  Stevens,  99  Mass.  7;  Oakes  v. 
(N.  S.j  428;  Emerick  v.  Taveuer,  9  Monroe,  8  Cush.  282;  Falkner  v. 
Gratt.  221;  Kluge  v.  Lachenour,  12  Beers,  2  Dougl.  117;  Cobb  v.  Arnold, 
Ired.  180;  Lundsford  v.  Alexander,  4  12  Met.  39;  Gallender  v.  Sherman,  5 
Dev.  &  B.  40;  Jackson  v.  Seaman,  3  Ired.  711;  Newman  v.  Mackin,  21 
Johns.  499;  Goodwin  v.  Jones,  26  Miss.  383;  Sharp  v.  Kelly,  5  Denio, 
Conn.  264;  Jackson  v.  Wheedon,  1  431;  Shelton  v.  Doe,  0  Ala.  230;  Hen- 
E.  D.  Smith,  141;  Giles  -v.  Ebsworth,  ley  v.  Bank,  16  Ala.  162. 

10  Md.  333;  Bertram  v.  Cook,  44  «  Emerick  v.  Taverner,  9  Gratt, 
Mich.  396.  221. 


988 


The  Law  of  Estoppel. 


dence,'  because  the  ir.justice  lies  in  taking  advantage  of  the 
defect  and  in  not  pointing  out  or  proving  its  existence,  as  where 
a  lease  wrongly  describes  the  lessee,  &c. 

§  801.  If  the  demise  is  by  indenture,  the  tenant  is  positively 
estopped  to  plead  nil  iMhuit,  etc.,  even  though  the  lessee  may 
have  hired  and  enjoyed  only  what  was  clearly  his  own  land,  as 
would  be  the  ease  if  a  disseizor  were  to  demise  to  his  disseizee  by 
indenture."  By  accepting  a  lease  and  becoming  a  tenant,  he 
admits  the  title  of  his  landlord,  and  consequently  precludes  him- 
self from  disputing  it.'  Such  estoppel  only  continues  during  the 
term  of  the  hiring  ;  after  that,  the  lessee  may  set  up  his  own  title 
against  his  lessor.*  Where  the  lessor  is  not  himself  in  possession, 
the  lessee  is  not  estopped,  by  a  written  agreement  to  hold  for  a 
certain  time  and  pay  rent,  to  plead  nil  Ixahuit  to  an  action  for 
rent,*  and  the  rule  is  equally  imperative  in  actions  for  use  and 


*  Gray  v.  Johnson,  14  N.  H.  414; 
Russell  V.  Fabian,  27  N.  H.  527; 
Fulton  V.  Hamilton,  6  Neb.  169; 
Callcnder   v.    Sherman,    5   Ired.    711. 

"^  Kemp  V.  Goodull,  2  Ld.  Raym. 
1154;  Wilkins  v.  Wingatc,  6  T.  R. 
62;  Flelcher  v.  M'Farlane,  12  Mass. 
45;  Wilson  v.  Townsend,  2  Ves.  693; 
Miller  v.  Bonsadcm.O  Ala.  317;  Vernara 
V.  Smith,  15  N.  Y.  327;  Co.  Lit.  476; 
Wood  V.  Day,  1  Moo.  380;  Heath  v. 
Vermeden,  3  Lev.  146;   Roe  v.  Davis, 

7  East,  366;  Burnett  v.  Lynch,  5  B.  & 
C.  589. 

^  Paige  v.  Kinsman,  43  N.  H.  328; 
Atwood  v.  Maustield,  33  111.  452;  Wil- 
liams V.  Heales,  L.  R.  9  C.  P.  171; 
Doc  V.  Smythe,  4  M.  &  S.  347;  Balls 
V.  We.^twood,  2  Camp.  11;  Bailey  v. 
Kilboiirn,  10  Met.  176;  Hawes  v. 
Shaw,  100  j\Liss^l87;  Hogau  v.  Ilarley, 

8  Allen,  225;  Cobb  v.  Arnold,  8  Met. 
398;  Miller  v.  Lang,  99  Mass.  13; 
Whalen  v.  White,  25  N.  Y.  462; 
Trafton  v.  ILnves,  102  Mass.  533; 
Parish  v.  Dow.  3  Alien,  369;  Jolly  v. 
Arbuthnot,  4  De  G.  ct  J.  224;  Dancer 
V.  Hastings,  12  Moo.  34;  Morton  v. 
Woods,  L.  R.  4  Q.  B.  293;  Cornish  v. 


Searell,  8  B.  &  C  471 ;  Duke  v.  Ashby, 
7  H.  vfe  N.  600. 

*  Iiip.  Co.  V.  Mackenzie,  10  C.  B. 
(N.  S.)870;  Paige  V.  Kinsman,  43  N. 
n.  328;  Jones'  Case,  Moore,  181;  Riis- 
sell  V.  Fabyan,  27  N.  H.  537;  Willisoa 
v.  Watkins,  3  Peters,  43;  Doe  v. 
Smythe,  4  M.  &  S.  348;  Doe  v.  Wells, 
10  A.  &  E.  427;  Jackson  v.  Vincent, 
4  Wend.  633;  Jackson  v.  Collins,  11 
Johns.  1;  Greeno  v.  Munson,  9  Vt.  40; 
North  v.  Barnuni,  10  Vt.  223;  Duke 
V.  llarpei',  6  Yerg.  280;  Fusselman  v. 
Worthington,  14  111.  135;  Hall  v. 
Dewey,  10  Vt.  593;  Wall  v.  Good- 
enough,  16  111.  416;  Fisher  v.  Pro.sser, 
Cowp.  218;  Peyton  v.  Stitli,  5  Pet. 
491;  Wils(m  v.  Weathersby,  1  N.  & 
McC.  373;  Bliglit  v.  Rochester,  7 
Wheat.  547;  Doe  v.  Reynolds,  27  Ala. 
376;  De  Lancey  v.  Ganong,  9  N.  Y.  9; 
Jones  V.  Clark,  20  Johns.  62;  Russell 
V.  AUard,  18  N.  H.  222;  Carpenter  v. 
Thompson,  3  N.  H.  204;  Gray  v. 
Johnson,  14  N.  H.  421;  Walden  v. 
Bodley,  14  Pet.  156 ;  Zeller  v.  Eckert, 
4  llow.  289. 

5  Naglee  v.  Ingersoll,  7  Pa.  St.  185; 
Vernam    v.    Smith,    15    N.    Y.    329; 


Estoppel  in  Pais. 


989 


occupation  where  the  demise  is  bj  parol,  and  applies  as  well  after, 
as  during  the  term,  and  where  the  tenant  holds  over  after  the 
expiration  of  the  terra.'  Though  if  there  is  a  written  lease  the 
lessor  cannot  recover  for  use  and  occupation,  and  such  would  be 
the  case  at  the  common  law  if  the  lease  were  under  seal,"  so,  if  a 
tenant  under  a  lease  were  to  convey  the  estate  in  fee  to  a  third 
party,  he  would  have  no  better  right  to  contest  the  title  of  the 
lessor,  than  the  lessee  himself.'  The  same  estoppel  which  pre- 
vents a  tenant  from  disputing  his  landlord's  title,  extends  to  all 
persons  who  enter  upon  premises  under  a  contract  for  a  lease,  and 
to  all  persons  who  by  purchase,  fraud,  or  otherwise,  obtain  pos- 
session from  such  tenant.*  But  if  one,  not  knowing  that  the 
tenant  holds  a  lease,  purchases  the  estate  by  an  absolute  deed  from 
the  tenant,  who  has  an  apparent  legal  title  other  than  his  lease, 
such  purchaser  may  contest  the  title  of  the  lessor."  If,  however, 
it  appears  by  the  recitals  of  the  lease  that  the  lessor  had  no 
interest  in  the  land,  or  that  he  had  only  an  equitable  interest,  at 
the  time  of  the  demise,  there  will  be  no  estoppel.* 

§  862.  Perhaps  no  rule  of  law  is  better  settled  than  that  a 


Giiivenor  v.  Woodhouse,  1  Bing.  38; 
Tewksbiiry  v.  jMegraff,  33  Cal.  237; 
Franklin  v.  Merida,  35  Cal.  558; 
Cbeltle  V.  Pound,  1  Ld.  Raym.  746; 
Davis  V.    Shoemaker,    1  Rawle,   135. 

'  Binncy  v.  Cliapman,  5  Pick.  124; 
Shelton  v.  Doe,  G  Ala.  230;  Jackson 
Stiles.  1  Cow.  575;  Falkner  v.  Beers, 
2  Doug.  117;  Ycrnani  v.  Smith,  15  N. 
Y.  327;  Lewis  v.  Willis,  1  Wils.  314; 
Phipps  V.  Sculthorpe,  1  B.  <Sc  Aid.  50; 
Fleming  v.  Gooding,  10  Bing.  549; 
Codman  v.  .Jenkins,  14  Mass.  93. 

2  Warren  v.  Ferdinand,  9  xlllen, 
357;  Fuller  v.  Swett,  6  Allen,  219. 

^  Phillips  V.  Bothwell,  4  Bibb,  33; 
Den  V.  Gustin,  12  N.  J.  L.  49;  Turly  v. 
Rodgers,  1  A.  K.  Marsh.  245;  Lane  v. 
Orsment,  9  Yerg.  86. 

*  Jackson  v.  Stiles,  1  Cow.  575;  Jack- 
son V.  Harder,  4  S.  &  R.  467;  Lewis 
V.  Willis,  1  Wils.  314:  Rose  v.  Davis, 
11  Cal.  133;  Russell  v.  Erwin,  38  Ala. 
44;  Coburn   v.  Palmer,  8  Cush.  124; 


Barwick  v.  Thompson,  7  T.  R.  488; 
Wood  V.  Day.  1  Moo.  389;  Allauson 
V.  Starke,  1  P.  &  D.  183;  Taylor  v. 
Needham,  2  Taunt.  278;  Ingraham  v. 
Baldwin,  9  N.  Y.  45;  Binney  v.  Chap- 
man, 5  Pick.  124;  Codmau  v.  Jenkins, 
14  Mass.  93;  Shelton  v.  Doe.  6  Ala. 
260;  Falkner  V.  Beers,  2  Doug.  (Mich.) 
117;  Vernam  v.  Smith,  15  N.  Y.  327; 
Fleming  v,  Gooding,  10  Bing.  549; 
Eisler  v.  Paul,  54  Pa.  St.  196;  Phillips 
V.  Rothwell,  4  Bibb,  33;  Harker  v.  Gus- 
tin, 12  N.  J.  L.  42;  Turley  v.  Rodgers, 
1  A.  K.  Marsh.  245;  Love  v.  Dennis, 
1  Harp.  70;  Williams  v.  Mayor,  6  H. 
&  J.  533;  Ttustees  v.  Williams,  9 
Wend.  147. 

^  ThoHipson  v.  Clark,  7  Pa.  St.  62; 
Cooper  v.  Smith,  8  Watts,  536;  Jack- 
son V.  Davis,  5  Cow.  123. 

«  Pargeter  v.  Harris,  7  Q.  B.  708; 
Greenaway  v.  Hart,  14  C.  B.  340; 
Norton  v.  Woods,  L.  R.  3  Q.  B.  658. 


990  The  Law  of  Estoppel. 

tenant  in  possession  ujider  a  lease  shall  not  be  allowed  to  dispute 
the  title  of  his  lessor.  Yet  this  rule,  like  most  others,  has  its 
exceptions.  Where  the  tenant  has  been  induced  to  accept  the 
lease  by  misrepresentation,  fraud  or  trick  practiced  upon  him  by 
the  lessor,  he  is  not  estopped  from  setting  up  a  superior  title  to 
that  of  the  lessor.' 

In  Mays  v.  Dwight  the  court  said  :  "  It  matters  not  whether 
the  deception  practiced  originated  in  voluntary  falsehood  or  in 
simple  mistake ;  for  the  immunity  it  confers  springs  not  so  umch 
from  the  fraud  of  the  usurper  as  from  the  wrong  which  the  decep- 
tion would  otherwise  work  upon  the  rights  of  the  lessee."  Here 
it  is  clear  that  both  parties  to  the  lease  believed  the  well  to  be  on 
the  four  acres  described  therein.  The  master  so  finds.  We  have 
then  the  case  of  a  mutual  uiistake.  It  turns  out  that  the  well  is 
upon  the  property  of  another  person,  who  claims  the  rent  or 
royalty  for  its  use.  The  lessors  have' filed  their  bill  in  equity  for 
an  account  of  the  oil  taken  from  the  well,  the  royalty  for  which 
they  claim  under  the  terms  of  the  lease.  The  master  finds  the" 
fact  that  the  defendants  (lessees)  have  offered,  since  the  bringing 
of  the  suit,  to  surrender  possession  to  the  plaintiffs  (lessors)  of 
the  demised  premises.  The  court  below  made  a  decree  in  favor 
of  the  complainants,  to  which  decree  this  appeal  was  taken. 

We  do  not  jsropose  to  indicate  how  far  the  matters  alleged  by 
the  lessees  would  avail  them  as  a  defense  in  a  proceeding  at  law 
to  recover  the  rent  under  the  lease.  This  is  not  such  a  proceed- 
ing. The  lessors  have  invoked  the  aid'  of  a  court  of  equity. 
We  think  they  have  chosen  the  wrong  tribunal.  The  rule  that 
a  tenant  in  possession  cannot  dispute  his  landlord's  title  is 
not  more  firmly  established  than  is  the  familiar  principle  of 
equity  that  when  a  contract  is  made  under  a  mistake,  or  in  igno- 
rance of  a  material  fact,  which  is  of  the  very  essence  of  the 
contract,  it  is  voidable  and  relievable  in  equity."  So  in  New 
York  it  was  held^  that  where  there  was  a  usurious  loan  of  money, 
and  the  defendant  made  a  deed  of  the  premises  and  received  a 
lease  of  the  same,  as  cover  for  the  usury,  under  such   circum- 

'  Mays  V.  Dwight,  82  Pa.  St.  462;  Miles  v.  Stevens,  3  Pa.  St.  21;  Gibson 

Hamilton   v.    Marsdcn,    6    Biun.   45;  v.  Rolling  Mill,  3  Watts,  32;  Horbach. 

Brown    v.    Dj'singer,   1    Rawlc,    408;  v.    Gray,    8    Watts,   492;    Geiger    v. 

Baskin  v.  Seecbrist,  6  Pa.  St.  154.  Cook,  3  W.  &  S.  266;  Jenks  v.  Fritz, 

2  Mays  V.  Dwigbt,  82  Pa.  St.  462;  7  W.  »&  S.  201. 


Estoppel  in  Pais  991 

stances  tlie  tenant  may  deny  the  title  of  the  landlord,  since  the 
relation  does  not  exist,  the  agreement  being  void.  The  court  say, 
by  Churcli,  Ch.  J.:  "  It  is  also  urged  that  the  tenant  cannot  dis- 
pute the  title  of  his  landlord ;  but  I  do  not  think  this  principle 
applies  to  a  case  like  this.  A  tenant  cannot  dispute  the  title  of 
his  landlord  because  he  cannot  deny  what  he  has  once  admitted  ; 
but  here  the  instrument  containing  the  admission  is  void,  and  is 
not  effectual  for  any  purpose.  The  essential  requisite  to  author- 
ize these  proceedings  is  tliat  the  conventional  relation  of  landlord 
and  tenant  should  exist.  Such  a  relation  is  claimed  to  have  been 
founded  upon  an  agreement.  The  agreement  being  void,  the 
relation  is  not  established.  This  is  not  a  case  where  the  relator 
entered  upon  lands  owned  by  the  defendants.  He  was  the  owner 
confessedly,  and  by  a  series  of  instruments  in  form  transferred 
the  title  to  the  defendants  and  became  the  lessee.  These  instru- 
ments being  void,  he  claims  in  his  original  right  as  owner. 
Legally,  he  occupies  the  same  relation  to  the  property  that  he 
always  did,  because  nothing  has  been  done  to  change  it.'" 

§  863.  A  person  defending  as  landlord  is  bound  by  the  same 
estoppel  as  the  tenant  himself,  and  a  party  who  gets  possession  of 
premises  from  the  lessor  of  the  plaintiff  by  any  fraud  or  trick 
u}»n  him,  cannot  set  up  his  own  title,  or  a  title  in  a  third  person, 
in  answer  to  the  action.^  A  tenant  who  fails  to  comply  with  a 
statutory  requirement  to  notify  his  landlord  of  a  suit  in  eject- 
ment will  not  be  permitted,  after  judgnient  against  himself 
therein,  to  attorn  to  the  plaintiff,  or  purchase  his  title  and 
sec  it  up  against  the  landlord,  although  a  paramount  title.^ 
A  party  who  defends  as  landlord  is  estopped  from  object- 
ing that  the  occupiers  of  the  premises,  who  have  suffered 
judgment    to    go    by    default,   are    tenants    to    the    lessor,  and 

'  People  V.  Hewlett,  76  N.  Y.  574;  C.  279;  Doe  v.  Fuller,  1  Ty.  &  G.  17; 
Sirasv.  Humphrey,  4  Denio,  185;  Ev-  Pany  v.  House,  Holt,  489;  Hall  v. 
erston  V.  Sutton,  5  Wend.  281;  Buck  Butler,  10  A.  &  E.  204;  Dalby  v. 
V.  Binninger.  3  Barb.  391;  Spraker  v.  lies,  11  A.  &  E.  235;  Doe  v.  Wig- 
Cook,  16  N.  Y.  567.  gins.  4  Q.  B.  367;  Doe  v.  Foster,  3  C. 

^Doe%-.    Smythe,    4  M.  &  S.   347;  B.  215;  Atfy  Gen'l  v.  Hotbam,  3  Russ. 

Doc  V.  Mizzen,  2  Moo.  itBob.  56;  Doe  415;   Fleming  v.   Gooding,   10   Bins. 

V.  Sutherland,  4  Ad.  &  E.  784;  Doe  v.  549;   Gibbius  v.  Buckland,  1  H.  &  C. 

Baytup,  3  A.  &  E.  188;    Doe  v.  Mills,  736. 

2  B.  &  A.  17;   Ford  v.  Agar,  2  H.  &  3  Lowe  v.  Emerson,  48  111.  160. 


093  The  Law  of  Estoppel. 

have  not  received  notice  to  quit  from  him.'  The  tenant  is 
estopjicd,  by  his  lease  or  occupation,  from  disputing  the  title  of 
his  lessor,  or  from  setting  up  an  adverse  title  of  another,  acquired 
by  him  since  the  making  of  the  lease,  either  in  pleading  or  iu 
evidence  ;  and  a  third  person,  having  a  title  to  the  land  paramount 
to  that  of  the  lessor,  cannot  recover  rent  until  he  has  actually,  or 
made  an  effectual  claim  under  his  title.  An  action  for  rent  does 
not  lie  in  favor  of  a  stranger,  or  by  one  of  two  litigating  parties 
claiming  the  land.  An  action  of  this  kind  does  not  depend  upon 
the  validity  of  the  plaintiff's  title,  but  on  a  contract  between  the 
parties,  express  or  implied.  This  applies  not  only  to  a  tenancy, 
but  to  any  occupation  by  permission  of  another,  as  an  action  for 
rent,  for  recovery  of  the  premises  on  the  ground  of  forfeiture  or 
otherwise,  or  for  mesne  profits,  and  the  estoppel  applies  not  only 
to  the  lessee  or  lessor,  but  to  any  one  claiming  under  him,  or  in 
continuation  of  his  estate,  as  an  assignee,  sub-lessee,  purchaser, 
wife  of  a  deceased  tenant,  an  assignee,  or  the  heir  of  the  lessoi',  or 
between  heir  and  administrator  f  and  even  if  a  man  take  a  lease 
of  his  own  land,  or  land  of  which  he  has  possession,  the  estoppel 
applies,  and  he  is  concluded  ;  and  while  a  tenant  cannot  dispute 
his  landlord's  title  at  law,  equity  affords  him  no  relief.'  But 
where  the  landlord  waives  the  estoppel,  it  does  not  apply,  nor 
docs  it  if  the  tenancy  has  ceased.  The  estoppel  is  created  by 
the  making  of  the  lease,  and  when  that  determines,  the  estoppel 
ends. 

§  864.  When  a  person  has  been  let  into  possession  by  the  les- 
sor, or  those  under  whom  he  claims,  the  lessee  is  estopped  from 
disputing  the  title.  The  claimant  n)ay  not,  in  point  of  fact,  own 
the  land,  or  have  any  legal  title  to  it,  and  yet,  as  against  the 
defendant,  the  law  assumes  that   he  has  a  right  to  the  disputed 

'  Doe  V.  Creed,  5  Bing.  327;' Fran-  Clarke  v.  Clarke,  51  Ala.  498;  Doe  v. 
cis  V.  Doe,  4  M.  &  Wels.  331;  Challis,  6  E.  L.  &  Eq.  249;  Hodge  v. 
Doe  V.  SkiiTow,  7  Ad.  &  E.  ir)7;  Goodsell,  41  Conn.  317;  Love  v.  Den- 
Doc  V.  Birchmore,  9  A.  &  E.  602;  Doe  uis.  Harp.  70;  Hatch  v.  Bullock,  57 
v.  Fuller,  1  Tyr.  &  G.  17;  Duke  v.  N.  H.  15;  Eail  v.  Hale,  31  Ark.  470; 
Ashb}',  7  H.  &  N.  600;  Cowper  v.  Devatcb  v.  Newsara,  3  Ohio,  57;  Dun- 
Fletcher,  6  B.  &  S.  464.  shee  v.  Grundy,  15  Gray,  314;  Ron- 

2  Tondro  v.  Cushman,  5  Wis.  279;  ald.son  v.  Tabor,  43  Ga.  230. 

McKinne  v.  Montgomery,  9  Cal.  575;  ^  Payton  v.  Stith,  5  Peters,  485. 


Estoppel  in  Pais.  993 

property.'  That  a  person,  coming  into  the  possession  of  lands 
under  the  agreement  or  license  of  another,  cannot  be  permitted 
to  deny  the  title  of  the  latter,  is  universal.  Even  if  he  had  a 
valid  title  at  the  time,  he  is  deemed  to  have  waived  it,  and,  as 
between  the  parties,  to  have  admitted  title  in  the  person  under 
whom  he  entered.  For  instance,  one  making  a  contract  to  buy- 
land,  and  taking  possession  under  it,  though  strictly  the  relation 
of  landlord  and  tenant  is  not  thus  created,  yet  the  vendee,  in 
ejectment  by  the  vendor  against  him,  is  absolutely  estopped  from 
either  showing  title  in  himself,  or  setting  up  an  outstanding  title 
in  another.  The  agreement  to  purchase  is  an  acknowledgment 
of  the  title  of  the  vendor,  and  hence  the  vendee  is  not  permitted 
to  set  up  an  outstanding  title  when  called  upon  to  respond  in  the 
action  of  ejectment." 

§  865.  A  claim  of  title,  which  cannot  be  set  up  by  a  person 
while  in  possession,  cannot  be  set  up  by  another  person  who 
comes  itito  possession  under  him.  This  applies  to  the  case  of  a 
person  who  comes  into  possession  either  as  an  intruder,  or  under 
one  who  has  so  purchased,  and  in  either  case  he  is  estopped  from 
questioning  the  plaintiff's  right  of  possession.'  A  defendant 
will  not  be  permitted  to  show  title  in  another,  for  the  plaintiff 
comes  into  exactly  such  estate  as  the  debtor  had,  and,  if  it  was  a 
tenancy,  the  plaintiff  will  be  a  tenant  also,  and  estopped  in  a  suit 
by  tlie  landlord  from  disputing  his  I'ight.  A  mortgagee  or  direct 
purchaser  from  a  tenant,  or  one  who  buys  his  right  at  a  sheriff's 
sale,  assumes  his  relation  to  the  landlord  with  all  its  legal  conse- 
quences, and  is  as  much  estopped  from   denying  the  tenancy  as 

'  Sullivan  v.  Stradling,  2  Wils.  208;  v.  Robinson,  1  Biiig.  147;   Flemming 

Blake  v.  Foster,  8  T.  R.  487;  Hodson  v.  Gooding,  10  Bing.  549:  Cooper  v. 

V.    Sliarpe,  10  East,  355;  Phillips  v.  Blandy,  1  Bing.  N.  C.  45;  Doe  v.  Bar- 

Peaice,    5  B.    &   Cr.    423;    Baker  v.  ton,  3  P.  &  D.  194. 
Mellish,  10  Ves.  Jr.  514;  Gravenor  v.  *  Jackson    v.  Ayrcs.  14  .Johns.  224; 

Woodliouse,    1   Bing.    38;    Lucas    v.  Winnard   v.   Robins,  3   Humph.  614; 

Brooks,  18  Wall.  436;  Piercy  v.  Sabin,  Russell  v.  Irwin,  38  Ala.  44;  Jackson 

10  Cal.  22:  Mathewsou  v.  Spencer,  2  v.  Spear,  7  Wend.  G43;  Potts  v.  t'ole- 

Head,    24;  Stephen   v.    Mansfield,   11  man,  07  Ala.  221. 
Cal.  363;  Brenner  v.  Bigelow,  8Kas.  ^Jackson  v.  Harder,  4  .Johns.  202; 

497;    Burnett   v.    Rich,   45    Ga.   211;  Jackson  v.  Bard,  7  Jolms.  230;   .Jack- 

Prevot  V.    Lawrence,  51   K  Y.  219;  son  v.   Walker,  7  Cow.  637;   Campaii 

Tompkins  v.    Snow,   65    Barb.    525;  v.  Lafferty,  43  Mich.  429;  Callender  v. 

Hershey  v.  Clark,  27  Ark.  527;  Reauie  Sherman,  5  Ired.  711. 
Vol.  I.— 63 


994  Tup:  Law  of  Estoppel 

the  original  tenant.'  Estoppels  of  this  kind  arise  also  when  there 
is  an  acceptance  of  a  lease,  notwithstanding  a  failure  to  enter 
upon,  or  a  withdrawal  from  the  premises,*  and  endures  after  the 
expiration  of  the  term  of  the  tenant,  who  still  remains  in  the 
occupation  of  the  land.'  As  these  principles  apply  w'ith  the 
same  force,  whether  the  estate  demised  is  of  freehold  or  for 
years,  a  grantee  in  fee,  by  deed  indented,  cannot  rely  on  a  defect 
in  the  grantor's  title  as  a  reason  for  refusing  to  pay  rent,  espec- 
ially when  he  has  gone  into  possession.* 

§  86G.  In  actions  where  suit  is  brought  for  the  recovery  of 
the  land,  this  estoppel  is  specially  an  equitable  one,  as  distin- 
guished from  a  legal  estoppel,^  and  is  applicable  where  the  tenant 
has  obtained  possession  on  the  faith  of  the  lease,  or  when  his 
acceptance  of  the  lease  has  prevented  the  landlord  from  gaining 
possession  which  he  was  entitled  to  have,  and  which  he  would 
otherwise  have  acquired,*  but  not  where  a  tenant,  already  in  pos- 
session, agrees  to  hold  of  another,  under  a  mistaken  impression 
that  he  has  a  good  title,'  nor  in  any  case  where  the  tenant 
can  retain  possession  w^ithout  controverting  anything  which  he 
expressly  or  impliedly  admitted  when  he  took  it,*  nor  when  the 
assent  of  the  tenant  is  procured  through  fraud  or  misrepresenta- 
tion on  the  part  of  the  landlord.*     And  it  has  been  held  that  the 

'  Wilson    V.    Watkins,   3    Pet.    43;  Swift  v.  Dean,  11  Vt.  325;  Wasbing- 

Lockwood  V.  Walker,  3  McLean,  431;  ton  v.  Conrad,  2  Humph.  582;  Shelton 

Hart  V.  Johnson,  6  Ohio,  87;  Jackson  v.  Carrol,  16  xVla.  148;  Isaac  v.  Clark, 

V.  Graham,  3  Caines,  188.  2  Gill,  1;  Stokes  v.  McKibbin,  13  Pa. 

«  Veruara  v.  Smith,  15  N.  Y.  329.  St.  167. 

3  Dflany  v.  Fox,  2  C.  B.  (N.  S.)  768;         »  Gregory  v.    Doidge.  3  Bing.  474; 

Turner  v.    Bradner,  18  B.  Mon.  285.  Ciaridge    v.    McKen^ie,   4  M.    &  G. 

•*  Naglee  v.  lugtrsoU,  7  Pa.  St.  ia5;  143. 
Hippie  V.  Brice,  28  Pa.  St.  406;  Smith         «  HamiUon  v.  Marsden,  6  Binn.  45; 

V.  Smith,  1  Harp.  Ch.  160.  Miller  v.    McBrier,    14   S.  &  R.  382; 

5  Den  V.  Ashmore,  22  N.  J.  L.  261;  Glein  v.  Reise,  6  Watts,  44;  Shiiltz  v. 

Pierce  v.  Brown,  24  Vt.  165;  Blight  Elliott,   11  Humph.   83;    Alderson  v. 

V.  Rochester,  7  Wheat.  555.  Miller,  15  Gratt.  279;   Pearee  v.  Nix, 

«  Cornish  v.   Woodman,  8  B.  &.  C.  34  Ala.  123;  Doe  v.  Bay  tup,  2  A.  &  E. 

471;  Hockeubury  v.  Snider,  2  W.  &S.  183;  Rogers  v.  Pitcher,  6  Taunt.  202; 

240;   Wilson  v.  Towusend,  2  Yes.  jr.  Fenner  v.   Dnplock,  2  Bing.  10;   Doe 

698;   Hill  V.    Vcuor,    1   Pa.    St.   402;  v.  Francis,  2  M.   &  R.  57;   Brooks  v. 

Rogers    v.    Pitcher,    5    Taunt.    242;  Rugg,    2    Bing.  N.    C.    272;  Hale   v. 

Gravener  v.   Woodhouse,  1  Bing.  38.  Butler,  2  P.  &  D.  374;  Ciaridge  v.  Mc- 

'  Ingraham  v.  Baldwin,  9  N.  Y.  45;  Kensie,  4  M.  &  G.  143. 


Estoppel  in  Pais.  995 

mere  fact  of  inducing  a  tenant  in  actual  possession,  although 
without  title,  to  accept  a  lease  from  one  who  has  neither  title  or 
possession,  and  thus  acknowledge  a  right  which  has  no  existence, 
carries  with  it  such  an  implication  of  fraud  or  undue  influence  as 
will  prevent  the  lease  from  operating  as  an  estoppel  in  favor  of 
the  lessor.' 

§  867.  A  tenant  is  estopped  from  contesting  the  validity  of 
the  title  at  the  time  when  the  lease  was  made  and  possession 
given,  not  from  showing  that  the  right  which  the  landlord  then 
had  was  defeasible  or  limited  in  its  nature  and  has  since  expired 
or  been  defeated,"  Proof  that  the  premises  were  sold  under  a 
judgment  against  the  lessor  and  bought  in  b}'  the  tenant  or  by  a 
third  person,  to  whom  he  has  attorned,  in  order  to  avoid  being 
evicted  f  or  that  the  lessee  has  attorned  or  paid  rent  to  a  mort- 
gagee under  the  pressure  of  a  demand  from  the  latter,  will  be  a 
good  defense  in  an  action  brought  to  enforce  the  covenants  in  the 
lease  or  to  recover  possession,  for  the  reason  that  the  tenant  is 
allowed  to  acquiesce  in  what  he  cannot  resist,  and  to  attorn  in  the 
first  instance  in  place  of  going  out  of  possession,  and  then  return- 
ing under  a  new  lease  ;*  and,  also,  applies  where  the  land  is  sold 
for  taxes,  and  the  tenant  is  compelled  to  become  the  purchaser  in 
order  to  avoid  eviction,"  unless  the  circumstances  were  such  that 
the  fault  is  as  much  his  as  the  landlord's.^ 

§  868.  A  lessee  may  show  that  his  lessor's  title  has  expired, 
but  he  cannot  show  that  it   never  existed.^     Although  a  tenant, 

'  Hockenbuiy  v.  Snider,  2  W.  &  S.  liott  v.  Smith,  23  Pa.  St.  131. 

240;  Hill  v.  Benner,  1  Pa.  St.  402.  "  Evans   v.    Elliott,  9  A.  &  E.  342; 

"  Jackson  V.  Rowland,  6  Wend.  666;  Mayor  v.    AVhitt,    15  M.    &   W.  571; 

Ryers  v.    Farwell,    9  Barb.  615;  De-  Watson    v.    Lane,     11     Excliq.    769; 

vatch  V.  Nevvsome,  3  01iio,  57;  Woolf  Smith    v.    Sheppard,    15    Pick.    147; 

V.  Jolmson,  3  Miss.  533;  McDivitt  v.  Welch  v.  Adams,  1  Met.  494;  Delauey 

Sullivan,  8  Cal.  592;  Homer  v.  Leeds,  v.  Fox,  2  C.  B.  (N.  S.)  768;  Doe  v.  Bar- 

25  N.  J.  L.  106;   Miller   v.  Williams,  ton,  11  A.  &  E.  215;  Pierce  v.  Brown, 

15   Gratt.   213;   Wolf  v.  Johnson,  30  24  Vt.    155;  McAusland   v.  Pundt,  1 

Miss.  518;  Battison  v.  Budd,  17  Ark.  Neb.  211;   Morse  v.  Goddard,  13  Met. 

540;  McAusland  V.  Pundt,  1  Neb.  211;  177;    Knowles   v.  Mayuard,    13  Met 

Hoag  V.  Hoag,  35  N.  Y.  469.  352. 


3  Gregory  v.  Crab,  2  B.  Mon.  234 
Chambers  v.  Pleak,  6  Dana,  420 
Wallis  V.    Lathrop,    22    Wend.    121 


5  Bettison  v.  Budd,  17  Ark.  546. 
«  Haskell  v.  Putnam,  43  Me.  342. 
'  People   V.   Howlett,  76  N.  Y.  574; 


George  v.   Putnam,  4  Cush.  351;  El-     Weichselbaum  v.  Curlett,  20Kas.  709; 


996  The  Law  of  Estoppel. 

without  a  surrender  or  eviction,  or  something  equivalent  thereto, 
cannot  show  that  the  title  of  his  landlord  was  not  a  valid  one 
when  he  entered  under  him,  he  can  show  that  such  valid  title  has 
been  legally  extinguished  or  determined,  so  that  it  no  longer  exists. 
He  does  nothing  thereby  inconsistent  with  the  lessor's  right  to 
grant  the  original  lease.  The  tenant  cannot  be  allowed  to  plead 
to  his  landlord's  action  nil  hdbuitin  tenementis,  but  he  can  plead 
nil  Jiahet^  &c.  A  tenant  does  not  deny  that  the  landlord  had  a 
title  at  the  beginning  of  the  lease,  by  showing  that  the  same  title 
has  expired.  This  exception  to  the  general  rule  is  well  established 
by  numerous  authorities,  and  is  entirely  consistent  with  the 
reasons  for  maintaining  the  rule  itself.'  It  is  an  indispensable 
condition  in  an  action  to  recover  possession  of  demised  premises 
that  the  complainant  is  lawfully  entitled  to  the  possession,  and 
unless  he  shows  himself  to  be  so  the  jurisdiction  fails.'  Que  who 
has  succeeded  by  grant  to  the  estate  and  right  of  the  landlord  can 
maintain  the  pi-oceeding,  but  the  grantor  can  not.^  If  the  land- 
lord die  during  the  tenancy  and  a  contest  arises  with  the  heir,  the 
tenant  cannot  dispute  the  title  of  the  ancestor,  but  he  may  show 
a  devise  to  a  third  person  ;  that  were  it  otherwise,  the  tenant 
would  be  at  tlie  mercy  of  both  the  heir  and  devisee.  He  could 
defend  himself  against  neither.*  He  may  show  that  his  landlord's 
title  has  been  transferred,  not  reserving  the  rents,  or  has  passed 
to  another  by  operation  of  law  ;  and  in  like  manner,  when  the 
landlord  has  transferred  all  his  title  and  interest  to  another, 
to  whom  the  tenant  has  attorned,  the  landlord  is  estopped 
from  asserting  against  the  tenant  any  rights  under  the  original 
lease.^  If  the  vendor  himself  parts  with  the  title,  or  if"  it  be 
sold  under  execution  against  him,  the  lessee  may  in  good  faith 
attorn  to  the  purchaser,  and  in  an  action  against   him  by  the 


Kilbourn  v.  Fogg,  99   Mass.  11;  Des-  ""  Bryan  v.  SmiLh,  10  Mich.  229. 

parcl  V.  Walbvidgc,  15  N.  Y.  374;  Mc-  ^  Howiird  v.  Merrlam,  5   Cush.  563; 

Guffie  V.  Carter,    43   Mich.  497;  Lau-  Hayden  v.  Ahern,  9  Gray,  438;  Rabe 

canshiru    v.    Mason,   75    N.    C.    455;  v.  Tyler,  18  Miss.  440. 

Jackson   v.    Rowland,  6   Wend.  670;  *  Despard   v.  Walbridge,  15  N.  Y. 

BeaJ,!  v.  Davenport,  48  Ga.  165.  374. 

'  Lamson  v.    Clark,  113  Mass.  348;  '  Otis    v.    McMillan,    70    Ala.     46; 

O'Brien  v.  Ball,  119   Mass.    38;  Whit-  Zachry  v.  Stewart,  67   Ga.  218;  Beal 

ney  v.  Dinsmore,  0   Cush.  124;  Ryder  v.  Davenport,  48  Ga.  465. 
V.  Hansen,  66  Me.  167. 


Estoppel  in  Pais.  997 

original  owner,  lie  may,  tliougli  tlie  purchase  money  is  still  un- 
paid, show  such  sale  and  attornment  as  a  defense  to  the  action.' 
In  an  action  for  rent  the  tenant  can  not  deny  his  landlords  title 
unless  he  shows  a  hona  fide  eviction  under  a  paramount  title, 
that  his  landlords  title  was  extinguished  pending  the  occupancy.'' 

§  869.  The  expulsion  of  the  tenant  by  a  paramount  title  will 
put  an  end  to  the  estoppel.  The  estoppel  is  absolute  as  long  as 
the  tenant  remains  in  possession,  even  when  he  has  attorned  in 
good  faith  to  the  holder  of  the  adverse  title  in  order  to  avoid  an 
eviction,'  unless  the  latter  has  previously  obtained  a  verdict  and 
judgment  in  ejectment,  or  other  real  or  possessory  action  brouglit 
for  the  recovery  of  the  premises."  A  lessee  cannot  deny  the  title 
of  his  lessor  until  he  is  discharged  from  the  estoppel  arising  out 
of  his  leasoi^'and  possession  by  yielding  up  possession  to  his  lessor.^ 
He  cannot  enable  himself  to  resist  his  landlord,  by  merely  leaving 
the  premises,  and  then  before  the  landlord  gets  in,  going  back 
under  some  other  possession  or  claim  of  title,  for  that  is  plainly 
incompatible  with  the  lessor's  right  to  have  back  the  possession 
which  the  tenant  agreed  to  restore."  It  is  not  necessary  to  the 
operation  of  an  estoppel  of  this  nature,  that  the  tenant  should 
have  actual  possession  of  the  premises,  if  he  might  have  had  pos- 
session but  for  his  own  neglect  or  fault.  Proof  that  the  lessor 
had  no  title,  and  that  the  lessee  refrained  from  entering,  conse- 
quently, will  not  be  a  defense  to  a  suit  for  rent,  unless  it  is  shown, 
that  the  premises  were  held  adversely  and  by  title  paramount, 
and  that  the  lessee  could  not  have  entered  without  committing  a 
trespass.'' 

§  870.  But  when  a  landlord  has  neither  title  or  possession 
when  the  lease  is  made,  all  the  elements  necessary  to  constitute 
an  estoppel  are  wanting,  and  the  tenant  cannot  be  made  liable  in 

'  Beall  V.  Davenport,  48  Ga.  465.  207. 

2  Russell  V.  Irwin,  38  Ala.  44;  Ran-  ^  Freeman  v.  Heath,  13  Ired.  498; 
dolph  V.  Carlton,  8  Ala.  606;  Gudgell  Grandy  v.  Bailey,  13  Ired.  211. 
V.  Duvall,  4  J.  J.  Marsh.  229;  Henley  ■*  Chambers  v.    Pleak,  6  Dana,  426. 
V.   Bank,   16  Ala.    552;   Crawford  v.  °  Smart  v.  Smith,  2  Dev.  258;  Free- 
Jones,  54  Ala.  459;  Kennedy  v.  Rey-  man  v.  Heath,  13  Ired.  498;  Wilson  v. 
nolds,  27  Ala.    364;  Rogers  v.  Boyn-  James,  79  N.  C.  349. 
ton,  57  Ala.  501;  English  v.  Key,  39  «  Jordan  v.  Marsh,  9  Ired.  234. 
Ala.    115;  Sheltou    v.  Eslava,  4  Ala.  ■"  Howard  v.    Murphy,    23  Pa.   St. 
238;   Seaberry     v.  Stewart,    22    Ala.  173;  Vernamv   Smith,  15  N.  Y.  329. 


998  The  Law   of  Estoppel. 

any  form  of  action.  After  a  tenant  has  surrendered  possession  to 
liis  landlord,  and  has  abandoned  the  premises  to  the  lessor,  he 
may  re-enter  under  a  paramount  title  derived  from  a  third  per- 
son, although  it  is  before  the  period  of  time  originally  fixed  for 
the  expiration  of  the  lease.'  But  in  order  to  do  so,  the  surrender 
must  be  real,  in  order  to  be  effectual ;  it  will  not  be  sufficient  if 
the  party  goes  out  of  possession  unless  the  other  has  due  notice 
and  full  opportunity  to  come  in." 

§  871.  The  tenant  ought  to  give  notice  to  the  lessor  of  his 
abandoning  or  holding  adverse  possession,  that  he  may  not  take 
advantage  of  the  confidence  reposed  in  him  by  the  lessor  in  put- 
ting him  into  possession  of  the  estate,  to  deprive  him  of  any 
rights  which  the  lessor  had  thereby  yielded  to  his  keeping.  If 
the  tenant  purchases  a  better  title  than  that  of  his  lessor  he 
ought,  nevertheless,  to  surrender  possession  to  his  lessor,  before 
he  seeks  to  avail  himself  of  his  new  title  against  his  landlord. 
If  he  surrenders  the  possession  which  he  holds,  or  surrenders  his 
lease  so  that  his  landlord  has  a  reasonable  time  and  opportunity 
to  retake  the  possession,  the  tenant  may  take  a  new  lease  from 
one  claiming  adversely  to  his  original  lessor,  and  dispute  the  title 
of  the  latter.^  Ho  must,  as  a  general  rule,  surrender  possession 
before  denying  his  landlord's  title,  but  if  the  tenant  acquires  the 
title  from  his  landlord,  or  by  a  judicial  sale  thereof  or  from  the 
reversioner,  the  landlord's  title  having   ceased,  the  tenant  need 

>  Turner  v.   Bradner,    18  B.    Mon.  ^  Beyer    v.    Smith,    3    Watts,    449; 

285.  Reed  v.  Shepley,  6  Yt.  602;  Mosliier 

«  Green  v.  Munson,  9  Vt.  370:  Boyer  v.Reding,  12  Me.  478;  Wild  v.  Serpell, 

V.  Smith,    3  Watts,    349;    Banuon  v.  10  Gratt.  415;   Lundsford  v.  Turner, 

Banuon,    34  Pa    St.  2G3;  Freeman  v.  5  J.  J.  Marsh.  104;  Tilghman  v.  Little, 

Heath,  13Ired.  498;  Graham  v.  Moore,  13  111.  241;  Thayer  v.  Society,  20  Pa. 

4   S.  &  R.   407;  Thompson   v.  Clark,  St.  60;   Ainsley   v.  Longmire,  2  Kerr 

38  Pa.  St.  63;  Longfellow  V.  Longfel-  N.    B.)    322;   Bowser  v.    Bowser,  10 

low,  61   Me.    590;  Miller  v.  Lang,  99  Humph.    49;     Ryerss  v.   Farwell,   9 

Mass.   13;  Tewksbury  v.  Magraff,  33  Barb.  615:  Lawrence  v.  ililler.l  Sandf. 

Cal.  237;  Hawes  v.  Shaw,  100  Mass.  516;  Casey  v.   Gregory,   13  B.  Mon. 

189;  Hoag  v.    Hoag,   35  N.    Y.  471;  506;   Perrin  v.  Calhoun,  2  Brev.  243; 

.Jackson   v.    Harrington,   9   Cow.  86;  Morse  v.  Goddard,  13  INIet.  177;  School 

Bigier  V.  Furman,58  Barb.  555;  Lowe  v.  Mcetze,  4  Rich.  50;  Poole  v.  Whit, 

V.    Emerson,    48  111.  160;  Farmer  v.  15  M.  &  W.  571;  Wilson  v.  Hubbell, 

Pickens,  83  N.  C.  549;  AVilsonv.  Hub-  1     Pennj-packer,     413;     Farmer    v. 

bell,  1  Pennypacker,  413.  Pickens,  33  N.  C.  549. 


Estoppel  in  Pais.  999 

not  first  surrender  liis  possession  if  lie  is  himself  tlie  the  owner 
of  the  title,  or  has  attorned  to  the  owner.' 

§  872.  If  a  tenant  enters  into  possession  under  the  lease,  and 
afterwards  acquires  an  outstanding  title  adverse  to  his  landlord, 
he  cannot  assert  it  against  his  landlord  without  first  surrendering 
the  possession  f  and  a  fortiori,  where  tiie  tenant  enters  under  a 
lease  from  an  administrator  in  his  official  capacity,  he  is  estopped 
from  setting  up,  as  against  the  administrator  dehonis  non,  a  sub- 
sequent lease  from  the  administrator  personallj'^  under  claim  of 
personal  title,  or  title  in  opposition  to  the  estate.^ 

§  873.  A  person  who  takes  and  retains  the  peaceable  posses- 
sion of  mortgaged  premises,  by  direction  of  the  mortgagee,  with- 
out any  agreement  to  pay  rent,  is  a  tenant  at  will,  from  year  to 
year  of  such  mortgagee,  and  cannot  be  ejected  by  the  mortgagor 
or  his  assigns,  so  long  as  the  mortgage  I'emains  unsatisfied/  But 
a  lessee  of  a  mortgagor  is  not  estopped  in  an  action  of  ejectment, 
brought  against  him  by  the  mortgagor,  from  showing,  to  protect 
his  possession,  that  he  has  become  the  assignee  of  the  mortgage.^ 

§  874.  If  a  person  makes  a  parol  gift  of  land  to  an  infant,  and 
the  mother  enters  into  possession  under  an  agreenient  to  hold  it 
for  her  son,  the  relation  of  landlord  and  tenant  is  not  created, 
but  she  is  estojjped  from  disputing  her  son's  title."  An  infant 
will  not  be  estopped  to  deny  the  title  of  his  landlord,  though  he 
has  admitted  that  he  held  under  him,  and  has  given  his  note  for 
the  rent.  A  contract  by  which  a  tenant  is  induced  to  desert  his 
landlord  is  corrupt  and  void,  and  the  person  to  whom  he  has 
attorned  cannot  maintain  an  action  upon  it.  And  if  an  adverse 
claimant  tampers  with  a  tenant,  and  obtains  possession  either  by 
his  consent  or  a  collusive  recovery,  he  is  estopped  to  deny  the 
landlord's  title,  and  the  tenant  is  likewise   estopped,   though  he 

'  Franklin   v.   Palmer,  50   111.  202;  Farland,    1    Phila.    555;    Wilson    v. 

Tewksbuiy  v.   Magraflf,  33   Cal.  237;  Hubbell,  1  Pennypacker,  413. 

Shields  V.  Lozear,  34  N.  J.  496.  ^Norwood   v.  Kirby,  70  Ala.  397; 

^  Cooper  V.    Smilh,   8  Watts,  536;  Rogers  v.  Boynton,  57  Ala.  501. 

Balls    V.    Westwood,    3    Camp.    12;  •*  Hennessy  v.  Fanen,  20  Wis.  42. 

Dimond  v.  Enoch,  1  Add.  356;  Eister  ^  ]sfiies  v.   Rainsford,  1  Mich.  338. 

V.   Paul,   54  Pa.    St.    196;  Morey  v.  ^  Russell    v.    Erwin,    38    Ala.    44; 

Rogers,  8  Phila.  297;   Caffrey  v.  Mc-  Grant  v.  White,  42  Mo.  285. 


1000  The  Law  of  Estoppel. 

has  surrendered  to  a  stranger.'  A  defendant  in  an  ejectment 
suit,  cannot  set  up  an  adverse  possession  after  having  acknowl- 
edged a  tenancy.^  A  party  wlio  lias  taken  title  to  one  undivided 
half  of  tlie  premises,  from  a  trustee,  and  occupied  the  other  half 
as  tenant,  is  estopped  to  deny  the  validity  of  the  title  to  such 
other  lialf  of  the  premises  in  the  trustee's  grantee.'  Upon  the 
termination  of  a  lease  made  by  M.,  as  agent,  he  brought  eject- 
ment to  recover  possession,  the  tenant  was  estopped  from  show- 
ing that  M.'s  agency  was  revoked.*  An  admission  that  a  title 
exists,  implies  that  it  has  all  the  ordinary  incidents  of  an  estate 
in  land  and  may  be  assigned.^ 

§  875.  If  a  lessor  sells  or  transfers  his  legal  estate  and  interest 
in  the  demised  premises  to  a  third  party,  and  the  lessee  receives 
notice  of  the  transfer,  and  is  required  to  pay  his  rent  to  the  trans- 
feree and  refuses,  he  is  liable  to  an  action  for  use  and  occupation 
at  the  suit  of  the  latter.  The  defendant  may  show  that  the 
plaintiff's  interest  in  the  premises  has  expired,  or  has  been  trans- 
ferred to  some  third  party,  but  he  is  estopped  from  denying  the 
lessor's  title  to  grant  the  property  to  be  enjoyed,  and  cannot 
show  that  he  has  only  the  equitable  estate,  or  that  he  is  entitled 
only  as  co-executor  wi-th  others  who  do  not  join  in  the  action. 

§  876.  One  tenant  in  common  of  lands  may  estop  himself  by 
a  grant  of  an  easement  upon  such  lands,  but  he  cannot  thereby 
estop  his  co-tenants,  nor  will  they  become  estopped  by  acquiring 
his  interest  in  the  lands.*  Wlien  the  owners  or  occupiers  of  land 
hold  such  a  relative  position  as  to  make  it  the  duty  of  each  to 
protect  the  title  of  the  other,  any  purchase  that  may  be  made  of 
an  adverse  or  outstanding  title  by  one  will  inure  in  equity  to  the 

'  Morgan  v.    Ballard,   1   Mar.   558;  5  Wis.  279;  Pluraer  v.  Plumer,  30  N. 

Steward  v.  Roderick,  4  W.  &  S.  188;  H.  558;  Hardesty  v.  Glenn,  '62  111.  62; 

Cauifman   v.    Congregation,   6   Binn.  Caldwell     v.    Center,    30     Cal.    539; 

59;   Bbarp    v.    Kelly,   5    Denio,   431;  Galloway  v.  Ogle,  2  Binn.  468. 

Reed  v.  Sliepley,  6  Vt.  602;  Jackson  =  Hoag  v.  Hoag,  35  N.  Y.  469. 

V.    Stuart,   G   John.s.    34;   Jackson  v.  ^  ci^-k  y.  Crego,  47  Barb.  599. 

Harper,    5    AVend.    246;    Jackson    v.  *  Holt  v.  Martin,  51  Pa.  St.  499. 

Wueedon,  1  Ed.  Smifli,  141;  Lyme  v.  *  Cutbbcrtson  v.  Irving,  4  Hurls.  & 

Saunders.  4  Strobb.  190;  Chambers  v.  N.  746;  6  lb.  135. 

Pleak,6Dana,  426;Bankv.  Mersereau.  «  Mabie    v.    Matteson,    17   Wis.    1; 

3  Barb.  Ch.  528;  Toudro  v.  Cu^hman,  OIney  v.  Feuner,  2  R.  I.  211. 


Estoppel  in  Pais.  1001 

benefit  of  all.'  Thus,  where  a  mortgagee  in  possession  of  land 
died,  claiming  to  own  it,  and  bj  his  will  devised  it  to  his  sons, 
and  a  stranger,  by  purchase,  became  the  owner  of  the  interest  of 
one  of  the  sons,  and  tenant  in  common  with  the  others,  such 
stranger  could  not  purchase  the  equity  of  redemption  of  the 
mortgagor  for  his  own  exclusive  benefit,  as  against  his  co-tenants, 
but  such  purchase,  if  made,  would  inure  to  the  common  benefit 
of  himself  and  co-tenants,  at  their  option.^  This  principle,  which 
is  well  settled  with  regard  to  joint  tenants  and  coparceners,  should 
be  sufiiciently  broad  to  entitle  a  landlord  to  require  a  tenant,  who 
has  bought  at  a  sale  for  taxes,  or  other  proceeding  of  the  same 
nature,  to  reconvey  on  receiving  the  amount  expended.  This  is 
the  rule  where  the  sale  is  occasioned  by  the  default  of  the  tenant 
in  not  paying  the  taxes  as  he  had  stipulated  in  the  lease.'  And, 
after  the  expiration  of  the  lease,  a  lessee  who  suffers  the  demised 
premises  to  be  sold  for  taxes  or  assessments,  which  by  the  terms 
of  the  lease  he  was  bound  to  pay,  is  estopped  from  setting  up  a 
tax  deed  to  himself  as  assignee  of  the  certificates  of  such  against 
his  lessor,  although  not  issued  until  after  the  termination  of  the 
tenantcy,  but  such  lessor  may,  in  an  action  for  that  purpose, 
compel  the  grantee  of  such  deed  to  quit-claim  the  premises,  or 
restrain  him  from  incumbering  or  disposing  of  the  same  or  suing 
for  the  possession  thereof,  and  in  such  suit  he  need  not  prove  his 
own  title  thereto.^  Where  a  lessee  of  land  becomes  a  tenant  in 
common  with  others,  under  a  purchase  at  a  sale  of  the  premises 
for  taxes,  he  is  estopped  to  deny  the  validity  of  the  tax  sale,  in  a 
p'oceeding  by  his  co-tenants  for  partition/ 

§  877.  The  estoppel  between  landlord  and  tenant  stands  on 
the  same  footing  and  is  of  the  same  nature  as  that  which  subsists 
between  vendor  and  vendee,  mortgagor  and  mortgagee,*  and 
grows  out  of  the  injustice  of  permitting  a  possession,  obtained 
for  a  specific  purpose,  to  be  withheld  after  that  purpose  has  failed 


•  Clmrcli  V.  Church,  25  Pa.  St.  278;         ^  Shepherdson  v.  Elmore,    19  Wis. 

Pbelaii    V.    Kelly,     25    Wend.    508;  424. 

Bracken  v.  Cooper,  80  111.  221;  Bur-         ^  Ferguson  v.  Etter,  21  Ark.  160. 

hans  V.  Van  Zandt,  75  N.  Y.  523.  «  Wilson  v.  Watkins,  3  Peters,  43; 

-  Bracken  v.  Cooper,  80  III.  221.  Brooker  v.  Walker,  1  Yt.  18;  Fanner 

3  Haskell  v.  Putnam,  42  Me.  244.  v.  Pickens,  83  K  C.  549. 


1002  The  Law  of  Estoppel. 

or  been  fnlfilled.'  It  is  applic;il)le  whenever  an  attempt  is  made 
to  retain  the  possession  of  h\ud  in  viohition  of  good  faith,  and  to 
the  injury  of  the  person  to  whom  it  rightfully  belongs,"  and 
arises  with  as  mueli  force  from  an  entry  under  a  license  or  cove- 
nant of  sale,  as  if  there  had  been  a  formal  lease.'  A  husband  who 
entered  under  his  wife,  or  a  wife  who  was  put  in  possession  by 
her  husband,  occupies  the  position  of  a  tenant,  and  is  estopped 
from  disputing  the  title  of  the  heir,*  and  the  same  estoppel 
applies  to  a  son  occupying  under  his  father.*  Thus,  where  the 
son  of  a  mortgagor  had  moved  a  frame  building  on  the  mort- 
gaged premises  and  placed  it  on  a  stone  foundation,  by  leasing 
the  building  after  foreclosure  sale,  and  paying  rent  therefor,  he 
was  estopped  setting  up  title  thereto  in  himself."  And  to  all  who 
are  under  an  obligation  to  restore  the  possession  which  they  hold 
to  the  source  from  whence  it  was  derived.  A  vendee  in  posses- 
sion cannot  buy  in  an  outstanding  title  and  then  set  it  up  as  a 
reason  for  refusing  to  comply  with  the  contract  of  sale,'  or  surren- 
dering the  premises  to  the  pei-son  from  whom  they  were  derived' 
unless  the  circumstances  are  such  as  to  entitle  him  to  rescind  the 
contract,  and  refuse  to  pay  or  recover  back  the  whole  of  the  pur- 
chase money,  nor  can  the  vendor,  (a-  those  claiming  under  him, 
keep  the  vendee  out  of  possession  by  acquiring  and  setting  up  a 
title,  inconsistent  with  that  which  he  agreed  to  sell."  Thus,  when 
a  vendor  remains  in  possession,  aftei'  the  execution  of  the  deed, 
with  an  understanding  that  possession  shall  be  surrendered  at  his 
death,  his  widow  will  be  estopped  from  setting  up  an  outstanding 


'  Dikeman  V.  Parish.  6Pa.  St.  210;  Griffith    v.     Griffith,    5    Ilarriiig.    5; 

Grecno   v.  Mii.son,  9  Vt.  37;  Gardner  Phelan  v.  Kelly,  25  Wend.  388;  Jack- 

V.    Greene,    5  R.    I.    104;    B!i;ght   v.  son  v.  Stetter,  5  Cow.  520. 

Rochester,  7  Wheat.  535.  «  g^.tts  v.  Wurth,  32  N.  J.  E.  82. 

=  Tindal  v.    Den,  21   K  J.  L.  051;  M^irk   v.  Taylor,   8   B.  Mon.    262; 

Kelly  V.  Kelly,  24  Me.  192.  Love    v.    Edniondson,    1    Ired.    152; 

^Glyun    V.    Georjre.  20   N.  H.   114;  Wilkinson   v.    Green,    34   Mich.   221; 

Phelan  v.  Kelly,  25  Wend.  388;   Doe  Crawley   v.   Timberlake,  2   Ired.  Eq. 

V.  Baytup,  3  A.  &  E.  188.  460. 

•»  Hall  V.  McIIuas,  4  W.    &  S.    381;  »  Hill  v.  Samuel,  31  Miss.  307;  Ilen- 

Zcller  V.  Eckert,  4  How.  289;  Brandon  der.^on  v.  Conay,  18  Miss.  487;  Walker 

V.    Bannon.  38  Pa.  St.  263:  Long  v.  v.  Sedgwick,  3  Cal.  398. 

Mast,  1  Jones,  189;  Courvisier  v.  Boa-  «  Up.sliaw   v.  McBride,  10  B.  Mon. 

vier,  3  Neb.  320.  203;  Grandy  v.  Bailey,  13  Ired.  22^ 

*  Blakeny  v.  Ferguson,  20  Ark.  547; 


Estoppel  in  Pais.  1003 

title  in  a  third  person,  as  a  bar  to  an  ejectment  brought  bj  the 
heirs  of  the  purchaser.' 

§  878.  As  this  class  of  estoppels  are  founded  upon  the  injustice 
of  keeping  possession  of  the  land,  in  violation  of  the  implied  or 
express  understanding  of  the  parties,  thej  cease  to  exist  as  soon 
as  it  is  surrendered,^  or  taken  from  him  by  the  entry  of  a  third 
person  under  a  paramount  title.  The  efflux  of  the  term  and  the 
surrender  of  the  premises  leaves  the  tenant  free  to  contest  the 
landlord's  title  even  when  the  lease  is  under  seal,'  Estoppels 
being  limited  in  their  application  to  the  transactions  in  which 
they  arise,  they  cease  to  exist  when  the  purpose  for  which  they 
came  into  being  is  satisfied. 

§  879.  Equitable  estoppels  have  an  important  bearing  on  the 
surrender  of  particular  estates  to  those  in  remainder  or  reversion, 
and  the  consequent  extinguishment  of  the  rights  and  duties 
incident  to  the  estates  surrendered.  The  statute  of  frauds,  which 
renders  a  writing  necessary  to  the  validity  of  a  surrender, 
expressly  except  surrenders  by  operation  of  law.  The  participa- 
tion of  a  tenant  for  life,  or  for  years  in  any  act  of  the  remainder- 
man or  the  reversioner  inconsistent  with  the  continuance  of  the 
tenancy,  will  inure  as  a  surrender  by  operation  of  law  and  thus 
come  within  the  exception  of  the  statute,  even  when  the  act  is  in 
pais  and  the  original  lease  by  deed."  Especially  when  the  act 
consists  in  the  grant  of  a  new-estate  in  the  tenant  himself,  as 
when  the  lessee  for  life  accepts  a  feoffment  with  livery  from  the 
lord  or  a' new  lease  from  the  reversioner,  or  when  the  parties  to  a 
lease  enter  into  an  agreement  which  substitutes  the  relation  of 
vendor  and  vendee  for  that  of  landlord  and  tenant.^  Where  the 
tenant  assents  to  a  lease  to  a  stranger  and  surrenders  possession, 
which  is  taken  by  the  new  lessee,  it  estops  the  first  tenant,  while 
it  may  not  be  regarded  as  a  surrender  of  the  term,  from  enforcing 
his  lease  to  the  injury  of  the  lessor  and  second  lessee,  the  other 
parties  to  the  transactions.' 

'  Doe  V.  Skinow,  7  A.  &  E.  157.  *  Baker  v.  Pratt,  15  111.  568. 

•'  Reed  v.  Shepley.  6  Vt.  603;  Camp  ^  Livingston  v.  Potts,  16  Johns.  28; 

v.  Camp,  6  Conn.  291;  Moshier  v.  Red-  Burnett  v.  Scribner,  16  Barb.  621. 

ding,  12  Me.  478;   Moore  v.  Freeman,  ^  Kiclioll  v.  Atherton,  10  Q.  B.  944; 

1  Busby,  95.  Davidson  v.    Gent,   1  H.   &  N.  744; 

3  Wild  V.    Serpen,   10    Gratt.   405;  Randall  v.  Rich,  11  Mass.  494;  Hesel- 

Smart  v.  Smith,  2  Dev.  258.  tine  v.  Seavey,  16  Me.  212. 


1004  TiiK   Law  of  Estoppel. 

§  880.  No  contract  or  agreement  can  take  effect,  either  as  a 
surrender  by  operation  of  law  or  as  an  estoppel,  unless  it  has  been 
acted  upon,  or  wholly  or  partially  executed.  A  surrender  may  be 
effected  by  express  words  evincing  a  mutual  agreement  between 
the  parties  for  extinguishing  the  particulai'  estate,  or  it  may  be 
implied  from  conduct  of  the  parties,  going  to  show  that  they  have 
both  agreed  to  consider  the  surrender  as  made.  The  agreement 
may  be,  and  sometimes  is,  implied  upon  the  principle  of  estoppel.' 
A  surrender  by  operation  of  law  takes  place  where  the  owner  of 
a  particular  estate  has  been  a  party  to  some  act,  the  validity  of 
which  he  is  by  law  afterward  estopped  from  disputing,  and  which 
would  not  be  valid  if  his  particular  estate  had  continued  to  exist. 
Tluis,  where  the  lessor  entered  upon  and  improved  a  part  of  the 
premises  with  the  knowledge  and  assent  of  the  lessee  ;  the  facts  ' 
showed  a  surrender  of  a  portion  of  the  premises  by  operation  of 
law.'  An  agreement  between  a  landlord  and  tenant,  for  a  change 
in  the  tenancy,  or  to  put  an  end  to  the  lease,  will  not  be  binding 
as  an  agreement,  without  some  new  extrinsic  or  intrinsic  con- 
sideration,^ nor  operate  as  a  surrender,  unless  it  inures  as  a  new  or 
actual  lease,*  or  numifests,  in  some  equally  unmistakable  waj^,  a 
design  to  substitute  a  new  and  inconsistent  relation  for  that  which 
has  hitherto  prevailed.^  An  agreement  with  a  stranger  for  a  new 
lease,  unattended  by  a  change  of  possession,  will  be  ineffectual, 
although  made  with  the  assent  of  the  tenant.'  The  grant  of  a 
new  lease  is  a  material  and  indispensable  ingredient,  unless  its 
place  is  supplied  hy  other  circumstances,  because  the  mere  entry 
of  a  third  person,  and  even  the  acceptance  of  rent  from  him  by 
the  landlord,  are  evidence,  not  of  the  surrender  of  the  existing 
term,  but  of  its  transfer  or  assignment,  and  consequently  go  to 
charge  the  new  tenant,  without  discharging  the  original  lessee 
from  his  express  covenant,  whatever  may  be  the  effect  on  those 
which  are  implied.'     A  surrender  of  the  estate  by  the  lessee  to 

'  D.'iyton  V.  Cvaik,  26  Minn.  33.  bishop,  6  East,  86. 

=  Smith  V.    Pcudergast,    26    Minn.  ^  Allen   v.  Jacquish,  21  Wend.  628; 

318.  Lament  v.  Guest,  3  II.  &.  G.  433. 

3  Crowley  v.  Vitter,  7  Exch.  318.  ^  Lawrence  v.  Brown,  5  K  Y.  394; 

♦  Doe  V.    Thomas,  6  B.  &  C.  228;  Scbioffelm    v.    Carpenter,    15  Wend. 

Doe  V.   Poole,  11  Q.   B.  713;  Brewer  400;  Parker  v.  Nanson,  12  Neb.  419. 
V.   Dyer,   7  Gush.   337;   Donnelan   v.  ■>  Shicffolin  v.  Carpenter,  15  Wend. 

Reid,  3  B.    «fc  A.  899;  Roe  v.   Arch-  400;  Preston  v.  McCall,  7  Gratt.  121; 


Estoppel  in  Pais.  1005 

his  lessor  will  not  authorize  him  to  deny  the  title  of  his  lessor, 
unless  it  is  made  fairly,  so  as  to  give  time  to  the  lessor  to  take 
possession  ;  and  if  immediately  after  a  surrender  the  tenant  takes 
a  lease  of  an  adverse  claimant,  it  does  not  extinguish  the  estoppel,' 
The  execution  of  a  new  lease  to  a  stranger,  with  the  assent  of  the 
tenant,  will  not  operate  either  as  a  surrender  of  the  original  term 
or  as  an  estoppel,  unless  followed  by  the  entry  of  the  stranger 
and  the  withdrawal  of  the  tenant,  for  the  reason  that  until  the 
entry,  the  transaction  is  executory,  and  there  is  not  sufficient  mat- 
ter in  pais  to  make  up  for  want  of  written  evidence." 

§  881.  Both  landlord  and  tenant  may  be  estopped  from 
insisting  on  their  rights  under  the  lease,  by  circumstances  which 
fall  short  of  a  new  tenancy.  The  delivery  up  of  the  key  to  the 
house  by  the  tenant  and  the  acceptance  by  the  landlord  constitutes 
a  surrender  by  operation  of  law,'  and  the  landlord  cannot  make 
the  tenant  subsequently  liable  in  an  action  for  use  and  occupa- 
tion.^ But  to  produce  this  result  the  tenant  must  not  only  deliver 
possession  to  the  landlord,  but  the  landlord  must  accept  it  in 
satisfaction  or  rescission  of  the  lease.'  A  lessor  being  entitled  to 
re-enter  when  the  lessee  withdraws,  for  the  purpose  of  taking 
care  of  the  property,  and  ])reventing  the  intrusion  of  third  per- 
sons, without  abandoning  the  right  to  enforce  the  lease,  and 
proof  that  the  key  was  sent  or  left  by  the  tenant  and  received  by 
the  landlord,  does  not  warrant  the  inference  that  the  lease  was 
surrendered,  unless  it  is  shown  that  such  was  the  object  of  the 
tenant,  and  that  he  would  not  give  up  the  lease  on  other  terms. ^ 
It  is  not  necessary  that  possession  shall  be  given  directly  to  the 
landlord,  the  abandonment  of  the  premises  under  such  circum- 
stances,   that   indicate    that   the    tenant    has    no    intention    of 

Ghegan  v.    Young,    23  Pa.    St.    18;  ♦  Wbitebead  v.    Clifford,  5  Taunt. 

Shepperdson    v.    Elmore,     19     Wis.  518;  Grinraan  v.    Legge,    8  B.  &   C. 

424;   Graham   v.  AVliicbello,    1    C.   &  824. 

M.  187.  s  Kerr  v.  Clark,  19  Mo.  132;    Kees 

^  Wall  V.  Hinds,  4  Gray,  256 ;  Fisher  v.  Miller,   25  Pa.  St.  481 ;  Gaunau  v. 

V.  MiUikeu,  8  Pa.  St.  111.  Ilartly,    9     C.    B.    634;     Mollett    v. 

^  Lawrence  V.  Brown,  5  N.  Y.  894?  Brayne,  2  Camp.  103;  Doe  v.  John- 
Doe  V.  Wood,  14  M.  &  W.  681;  Doc  ston,  Mc.  &  Y.  141;  Johnston  v.  Hud- 
V.  Johnson,  McC.  &  Y.  141.  dleston,  4  B.  &  C.  922. 

3  Dodd  V.  Acklom,  6  M.  &  G.  673;  «  Cannan  v.  Hartly,  9  C.  B.  634. 
Mollett  V.  Brayne,  2  Camp.  103. 


1006  The  Law  of  Estoppel. 

returning  will  justify  the  landlord  in  regarding  the  term  as  at 
an  end.' 

§  882.  While  the  landlord  may  treat  the  dereliction  of  the 
tenant  as  a  surrender  he  need  not  do  so  unless  he  thinks  proper, 
for  the  reason  that  the  contract  cannot  be  dissolved  by  the  default 
of  one  of  the  partie.^.*  The  obligations  of  the  express  covenants 
in  the  lease  may  continue,  notwithstanding  the  withdrawal  of  the 
tenant  and  the  payment  of  rent  by  a  third  person  as  assignee,' 
and  until  the  assignees  of  a  lease  elect  to  take  the  term,  it  remains 
in  the  lessee  with  all  its  antecedent  rights  and  obligations,  and 
when  the  term  has  been  accepted  by  the  assignees  and  has  vested 
in  them  by  operation  of  law,  the  lessee  is  still  bound,  by  his 
express  covenants,  to  pay  rent  or  perfoi-m  any  other  duty  grow- 
ing out  or  connected  with  the  estate  which  the  lease  confers. 
This  results  from  the  general  j^rinciple  that  the  passage  of  a 
covenant  running  with  the  land  to  an  assignee,  will  not  vary  or 
discharge  the  obligation  of  the  original  covenantor.  When  pos- 
session is  given  upon  one  side  and  accepted  on  the  other  with  an 
express  or  implied  agreement  that  the  demise  shall  cease,  a  sur- 
render will,  according  to  the  present  authorities,  take  place  by 
operation  of  law,  although  there  is  no  written  note  or  memoran- 
dum of  the  transaction,  and  the  intention,  of  the  parties,  has  to 
be  gathered  from  their  words  and  acts.*  An  instrument  which 
recites  that  one  occupies  a  tract  of  land  as  tenant  of  a  party  from 
whom  he  received  it  and  agrees  to  deliver  possession  by  a  certain 
day  estops  the  party  from  denying  that  fact.^ 

§  883.  The  same  result  follows  where  the  premises  are  trans- 
ferred to  a  third  person,  who  comes  in  under  a  new  lease,  because 
his  entry  is  virtually  the  enti-y  of  the  landlord,  and  it  would 
be  useless  to  require  the  lessor  to  go  through  the  ceremony  of 
taking  possession  merely  to  go  out  again.  The  burden  rests  on 
the  tenant,  who  must  show  affirmatively  that  the  lease  was 
determined  by  some  act  inconsistent  with  its  continuance  iuM-hich' 

1  McKinney   v.    Reader,    7    Watts,  «  Patchin  v.  Dickerman,  31  Yt.  663; 

123;  Toreiis  v.  Slrickler,  7   Jones,  50.  Grider"s  Appeal,  5  Pa.  St.  422;  Lamar 

9  Kees  V.  Miller,  25  Pa.  St.  480.  v.  McNamee,  10  G.    &  J.  116;  Dodd 

3  Jackson  v.  Browu,    7  Johns.  227;  v.  Aoklora,  6  M.  &  G.  673. 

Ghegan  v.  Young,  23  Pa.  St.  18;  Hall  '  Hall  v.  Hain,  5  Dana,  55. 

V.  Hands,  4  Gray,  256. 


Estoppel  in  Pais.  1007 

both  parties  joined  ;  and  proof  that  the  landlord  took  the  key,  or 
even  re-entered,  will  not  be  sufficient,  unless  it  appears  that  he 
did  so  voluntarily,  and  not  merely  because  it  was  thrust  upon 
him  by  the  tenant,  and  could  not  be  got  rid  of  without  throwing 
it  in  the  street. 

§  88-i.  While  the  possession  must  be  yielded  up  to  the  land- 
lord, or  transferred  with  his  assent  to  a  third  person,  under  a  new 
letting,  to  constitute  a  surrender  by  operation  of  law,  still  when- 
ever the  parties  have  so  far  changed  their  position  on  the  faith 
of  a  subsequent  agreement,  that  it  would  be  inequitable  to  en- 
force the  lease,  relief  may  be  given  in  equity,  or  on  the  ground 
of  equitable  estoppel  at  law,'  and  a  contract  for  the  sale  of  the 
premises  to  the  tenant,  followed  by  part  payment  of  the  price, 
was  held  to  put  an  end  to  the  term  by  creating  a  new  relation, 
inconsistent  with  its  continuance.*  A  tenant  who  has  covenanted 
with  his  landlord  to  give  up  fixtures  at  the  end  of  the  term,  is 
not  estopped  from  showing,  in  reduction  of  damages,  that  they 
were  claimed  and  given  up  to  a  mortgagee,  deducing  title  from 
the  landlord.'  There  is  no  estoppel  upon  a  grantee  to  deny  a 
grantor's  title  where  the  grant  is  of  a  fee,  as  there  is  in  the  case 
of  a  lease  by  indenture,  which  depends  upon  the  obligation 
which  the  lessee  is  under  to  return  the  land  and  surrender  the 
possession.*  If  the  lease  be  by  deed  poll,  the  lessee  might  deny 
the  lessor's  title.  ^  Wherever  there  is  an  obligation  to  restore 
possession  to  the  lessoi-,  the  tenant  is  estopped  to  deny  the  title 
of  him  under  whom  he  enters.®  A  grantor  by  deed  poll,  as  well 
as  indenture,  is  estopped  to  deny  the  title  of  his  grantee  by  set- 
ting up  any  claim  which  existed  in  his  favor  at  the  time  of  the 
grant.'  A  man  is  estopped  by  his  deed,  to  deny  that  he  granted 
the    estate    thereby   conveyed,   or   that  he  had  good  title  to  the 

1  Allen  V.  Jiicquish,   21  Wend.  628;      ester,  7  Wheat.  535. 

Lawrence   v.    Brown,    5   N.  Y.    394;  ^  Bac.    Abr.    Leases,  O    ;   Co.  Litt. 

Lammoit  v.  Gist,  2  IL  &  G.  4'dS;   La-  476;  Gaunt  v.  Wainmau,  3  Biug.    N. 

marv.  McNamee,  10  G.  &  J.  116.  C.  69. 

2  Burnet  V.  Scribner.  10  Barb.  621.  6]\ji]i(.i- v.  Scbackleforcl,4Dana,  264; 
'^  Watson  V.  Lane,  11  Exch.  769.  Bac.  Abr.  Leases,  O.;  Great  Falls  Co. 
*  Osterhout   v.  Shoemaker,    3   Hill,  v.  Worster,   15  N.  H.   413;  Chiles  v. 

513;  Ham  v.  Ham,  14  Me.  351;  Wat-      Jones,  4  Dana,  479. 
kinsv.  Holman,  16   Pet.  25;  Small  v.  ■>  Currier  v.  Earl,  13  Me.  216;  Corn- 

Proctor,  15  Mass.  495;  Blight  v.Roch-     stock  v.  Smith,  13  Pick.  116. 


1008  The   Law   of  Estoppel. 

same,'  The  estoppel  exists  only  when  the  possession  has  been 
received  under  the  lease,  and  does  not  continue  after  the  termina- 
tion of  the  landlord's  title,  or  where  the  tenant  has  been  actually 
or  constructively  evicted." 

§  885.  The  same  principle  of  estoppel  applies  to  a  purchaser 
from  a  tenant,  to  the  relations  of  mortgagor  and  mortgagee,  trus- 
tee and  cestui  qui  trusty  and  generally,  to  all  cases  where  one  man 
obtains  possession  of  real  estate  belonging  to  another  by  a  recog- 
nition of  liis  title.'  The  relation  of  vendor  and  purchaser,  under 
an  executory  contract  for  the  sale  of  land,  is  so  far  in  the  nature 
of  a  tenancy,  that  the  purchaser  is  estopped  from  denying  the 
title  of  the  vendor,  so  long  as  he  retains  possession  under  the 
contract.*  It  would  be  a  violation  of  good  faith  to  obtain  pos- 
session under  such  a  contract,  and  then  deny  the  right  of  the 
otliei"  party  to  reclaim  possession  or  the  fruits  of  the  contract. 
The  acceptance  of  a  deed  and  taking  possession  under  it,  oper- 
ates as  an  estoppel  in  pais  only  Avlicre  there  is  an  obligation  on 
him  who  accepts  it,  to  I'ctaiii  possession  as  in  the  case  of  lessor 
and  lessee,  mortgagor  and  mortgagee.^  When  one  enters  on  land 
under  a  contract  to  purchase,  but  neglects  to  pay  the  considera- 
tion money,  he  and  tliose  claiming  under  him  are  estopped  to 

'  Wilkinson  v.  Scott.  17  Mass.   249;  318;  Moore  v.  Farrow,  3  A.  K.  Marsh. 

Fairloj^  v.  Fairley,  34  Miss.  18.  41;  Ileermans  v.  Schmalz,  7  F.  R.  56G; 

*  Doe  V.  Barton,  11  A.  &  E.  307;  Quiim  v.  Quiun.  27  Wis.  1G8;  Miller 
Doe  V.  Smytho,  4  M.  &  S.  347;  Doe  v.  v.  Larson,  17  Wis.  644;  Jackson  v. 
Edwarils,  5  B.  &  A.  1065;  Doe  v.  Walker,  7  Cow.  637;  Bramble  v. 
Mills,  2  A.  &  E.  17;  Doe  v.  Birch-  Beidler,  38  Ark.  200;  Lewis  v.  Bos- 
more,  9  A.  &  E.662.  kins.  28  Ark.  01;  Pintard  v.  Goodloe, 

3  Abbott    V.    Cromartie,    72   N.    C.  Hemp.   502;   WiLsou  v.  Weatherby,  1 

292;  Baker  V.  Nail,  59  Mo.  265;  Conk-  N.  &   McC.  373;    Meadow    v.   Hop- 

lin  V.  Smith,  7  Ind.  107;  Williston  v.  kins,  ]\Ieigs,  81;  Willison  v.  Watkins, 

Watson,   3  Pet.  45;  Watkins  v.  IIol-  3  Pet.  43;  Farmer  v.  Pickens,  83  N, 

man,  10  Pot.  53;  Blight  v.  Rochester,  C.  549;  Tribble  v.   Anderson,  63  Ga. 

7  Wheat.  548;    Boone  v.  Armstrong,  31;   Walden   v.   Bodley,  14  Pet.  156; 

87  Ind.  168;  Thompson  v.  Justice,  88  Saunders  v.  Moore.  14  Bu.«h.  97;  Win 

N.  C.  269;  Dowd  v.  Gilchrist.  1  Jones  lock  v.  Hardy,  4  Lit.  272;  trillion  v. 

L.  353;  Campbell  v.  Trunnell,  67  Ga.  Riley,  1  Dana,  359;  Lester  v.  Shirwin, 
518;  Thompson  v.  Peake,  7  Rich.  353;  111. 

Goodwin   v.    Keney,   49    Conn.    282;         *  Lawton    v.    ITowe,  14    Wis.  241; 

Jones  V.  Reese,  65  Ala.  134.  ]\Iillion  v.  Riley,  1   Dana,  359;  Win 

♦  Harle  v.    McCoy,   7  J.  J.  j\Iarsh.  lock  v.  Hardy,  4  Lit.  272. 


Estoppel  in  Pais.  1009 

question  the  title  of  the  vendor  or  liis  heirs.*  The  relation  of 
landlord  and  tenant  is  not  created  between  vendor  and  vendee  ; 
yet,  the  vendee  in  ejectment  by  the  owner  against  him,  is  abso- 
lutely estopped  from  either  showing  title  in  himself,  or  setting 
up  an  outstanding  title  in  another  ;  and  the  same  rule  applies  to 
one  coming  into  possession  under  the  vendee,  either  with  his 
consent  or  as  an  intruder.^  If  a  defendant  (in  an  action  of 
ejectment)  enters  under  the  lessor  of  the  plaintiff  by  gift,  pur- 
chase, lease  or  otherwise,  he  cannot  dispute  the  plaintiff's 
title.' 

§  886.  x\.  party  is  always  estopped  to  deny  the  validity  of 
the  title  of  the  one  under  whom  he  claims.*  So,  where  the  de- 
fendant claims  title  under  the  defendant's  own  deed,  he  is 
estopped  to  allege  that  it  did  not  convey  title.*  So,  where  a 
grantor  in  a  deed  to  a  school  district  delivered  the  same  to  a  com- 
mittee who  gave  him  their  note  for  the  purchase  money,  he  was 
estopped  to  deny  their  authority  to  accept  it."  A  widow  was 
estopped  from  relying  on  a  grant  by,  or  attornment  to  the  holder 
of  a  paramount  title,  as  a  bar  to  the  recovery  by  the  plaintiff,  to 
whom  the  land  had  been  conveyed  by  her  husband  during  his 
life.'  In  order  to  produce  a  result  like  this,  the  wife  must  come 
into  possession  under  the  hueband,  not  the  husband  under  the 
wife,  and  a  widow  may  always  give  a  title,  held  by  her  while 
sole,  in  evidence,  in  an  ejectment  founded  on  a  conveyance  with- 

'  Gardner  v.    Greene,  5  R.  I.  110;  Smith,  7  Ind.  407;  Morrison  v.  Bassett, 

Wilison  V.  Watkins,  3  Pet.  43;  Riley  26  Minn.  2C5;  Currier  v.  Earl,  13  Me. 

V.  Million,  4  J.  J.  Marsli.  395.  216;  Wilkinson  v.  Scott,  17  Mass.  244; 

2  .Jackson  v.  Walker,  7  Cow.  637.  Cox  v.  Lacy,  3  Litt.  334;  Tcwksbury 

3  Gramly  v.  Bailey,  13  Ired.  221.  v.  Provizzo,  12  Cal.  26;  Beale  v.  Hall, 
*  Ward  "v.    Mcintosh,    12    Ohio   S.  22   Ga.   431;   Wickcrshani   v.   Orr,   9 

231;  Wedge  V.  Moore,  6  Cush.  8;  Root  Iowa,   235;   Mclldowny   v.  Williams, 

V   Crook,  7   Pa.   St.   373;   Jackson  v.  28  Pa.  St.  492;  McKinne  v.  Littlcjohn, 

Ilotchkiss.  7  Cow.  401;   Woolfolk  v.  2   N.  &   Mc.  52;   Patrick   v.  Leach,  2 

Ashby,.  2  Met.  (Ky.)  288;  Walker  v.  Fed.  R.  120;  Hall  v.  Ashby,  2  Jlont. 

Sedgwick,  8  Cal.  398;  Fitch  v.  Bald-  489;  Keith  v.  Keith,  104  U.  S.  397. 

win,  17  Johns.  IG;  Pierson  v.  David,  «  Williams  v.    Cush,    27   Ga.    512  ; 

1  Iowa,  23:  O'Brien  v.  Wetherell,  14  Hodges  v.  Eddy,  3S  Vt.  328. 

Kas.  616;  Rochell  v.  Benson,  1  Meigs,  ''  V>'oo(lfolk  v.  Ashby,  2  Met.  (Ky.) 

3;  Chiles  v.  Jones,  4  Dana,  474;  Miller  288. 

V.  Shackleford,  4  Dana,  264;  Ives  v.  ''  Cox  v.  Lacy,  8  Litt.  334;  Hender- 

Sawyer,   4  D.  *&  B.  51;    Conkliu  v,  sou  v.  Gre well,  8  Cal.  581. 
Vol.  I.— 64 


1010  The  Law  of  Estoppel. 

out  her  concurrence,  after  the  marriage.  A  grantee  wlio  enters 
into  and  retains  possession  of  land  under  a  deed,  will  be  estop- 
ped from  disputing  the  title  of  not  only  the  grantor,  but  of  all 
those  whose  right  relates  back  to  or  is  derived  from  his.'  But  it 
is  not  a  Ticcessary  consequence  that  while  the  grantee  is  estopped 
from  denying  the  grantor's  title,  that  he  is  bound  by  all  recitals 
or  co\-enants  in  prior  deeds  which  he  may  not  hav,e  seen,  they 
will  not  be  conclnsive  or  even  evidence  against  him  unless  they 
enter  into  and  qualify  the  operation  of  the  instrument  as  a  grant. 

§  887.  The  general  principle  that  a  tenant,  trustee,  mortgagor, 
purchaser  or  other  person,  who  comes  into  possession  of  real  estate 
by  recognizing  the  title  of  another,  while  so  possessed,  is  estopped 
from  disputing  that  title,  or  purchasing  an  outstanding  claim, 
without  its  inuring  to  the  benefit  of  the  party  under  whom  he 
entered,  does  not  apply  to  one  who  enters  and  claims  in  his  owu 
right  and  for  his  own  benefit,  nor  estop  him  from  fortifying  his 
title  by  the  purchase  of  any  other  which  may  protect  him  in  the 
quiet  enjoyment  of  the  premises.  In  respect  to  estoppels  as 
between  lessor  and  lessee,  and,  so  far  as  respects  them,  they  are 
well  established  and  should  bo  maintained.  The  title  of  the  lessee 
is,  in  fact,  the  title  of  the  lessor.  He  comes  in  by  virtue  of  it, 
and  rests  upon  it  to  maintain  and  justify  his  possession.  He  pro- 
fesses to  have  no  independent  right  in  himself,  and  it  is  a  part  of 
the  very  essence  of  the  contract  under  which  he  claims,  that  the 
paramount  ownership  of  the  lessor  shall  be  acknowledged  during 
the  continuance  of  the  lease,  and  that  possession  shall  be  surrend- 
ered at  its  expiration.  He  cannot  be  allowed  to  controvert  the 
title  of  the  lessor  without  disparaging  his  own,  and  he  cannot  set 
up  the  title  of  another  without  violating  that  contract  by  which 
he  obtained  and  holds  possession,  and  breaking  that  faith  which 
lie  has  pledged,  and  the  ol)ligation  of  which  is  still  continuing  in 
full  operation.^  This  estoppel  is  not  applicable  as  between  vendor 
and  vendee.  The  vendee  acquires  the  property  for  himself,  ami 
his  faith  is  not  pledged  to  maintain  the  title  of  the  vendor.  Tlie 
rights  of  the  vendor  are  intended  to  be  extinguished  by  the  sale, 
and  he  has  no  continuing  iutei-est  in  the  maintenance  of  his  title, 

'Case    V.   Benedict,   9    Cush.   540;         »  Lunton  v.  Howe,  14  Wis.  241. 
Siglar  V.  ^Malone,  3  Ilumpli.  IG. 


Estoppel  in  Pais.  1011 

unless  be  should  be  called  upon,  in  consequence  of  some  covenunt 
or  warrantj'  in  his  deed.  The  property  having  become,  by  the 
sale,  the  property  of  the  vendee,  he  has  a  right  to  fortify  that  title 
by  the  purchase  of  any  other  which  may  protect  him  in  the  quiet 
enjoyment  of  the  premises.  No  principle  of  morality  restrains 
him  from  doing  this  ;  nor  is  the  letter  or  spirit  of  the  contract 
violated  by  it.  The  payment  of  the  purchase  money  is  the  only 
controversy  which  ought  to  arise  between  him  and  the  vendor. 
How  far  he  may  be  bound  to  this  by  law,  or  by  the  obligations 
of  good  faith,  is  a  question  depending  on  all  the  circumstances 
of  the  case,  and  in  deciding  it,  all  those  circumstances  are  examin-' 
able.* 

§  888.  A  condition  may  be  provided  for  the  benefit  of  the 
vendee  as  well  as  the  vendor,  and  the  latter  will  be  strictly  bound 
by  it,  even  though  the  breach  does  not  affect  the  vendee's  title  to 
the  property.  The  vendor  is  estopped  to  deny  that  his  own  act, 
done  in  violation  of  the  condition,  is  invalid.  Thus,  where  a  town 
in  Massachusetts  sold  to  A.  the  right  of  fishing  in  a  certain  river, 
upon  condition  that  it  should  sell  no  further  right.  Tlie  town 
afterwards  sold  another  right  of  fishing  to  B.,  upon  condition  to 
be  void  if  the  town  could  not  lawfully  make  such  sale.  A. 
refused  to  accept,  and  pay  for  the  privilege  sold  him,  but  joined 
with  B.  in  carrying  on  the  fishing  in  B.'s  own  right.  Held, 
although  the  sale  to  B.  was  void,  the  town  could  not  maintain 
an  action  against  A.  for  the  price  which  he  agreed  to  pay.  The 
condition  in  the  conveyance  to  A.  was  intended  for  his  benefit. 
The  town  having  pretended  to  convey  the  privilege  to  B.,  were 
estopped  from  denying  their  power  to  do  so.* 

§  889.  Mutuality  is  ordinarily  essential  to  the  existence  of  an 
estoppel;  and  as  the  grantor  may  show  that  his  title  was  defective 
at  the  execution  of  the  conveyance,  and  recover  the  land  in  oppo- 
sition to  his  own  deed,  the  grantee  must,  for  the  same  reasons,  be 
allowed  to  pursue  the  same  course.^  An  estoppel  is  said,  by  Coke, 

»  Blight    v.     Rochester,    7    Wheat.  Nortou,  10  Conn.  422;  Sumuer  v.  Bar- 

535;  Ostcihout  v.  Shoemaker,  3  Hill,  nard,  13  Met.  459. 

313;  Watkins  v.  Hohnan,  16  Pet.  25;  «  Taunton  v.  Caswell,  4  Pick.  275. 

Society  v.  Pawlet,  4  Pet.  480;  Vorhies  ^  Gardner  v.    Green,   5  R.    I.  104; 

V.  White,  3  A.  K.  Marsh.  27;  Winlock  Gaunt  v.  Wainmaii,  3  Biug.  N.  C.  69; 

V.   Hardy,   4  Litt.   472;   Hubbard  v.  Small  v.  Procter,  15  Mass.  495;  Moore 


1012 


The  Law  of  Estoppel. 


to  arise  from  the  acceptance  of  au  estate,  but,  in  order  to  create 
this  estoppel,  there  must  be  an  estate  to  be  accepted,  M'hich,  in 
the  case  of  conveyances  by  deed,  is  the  very  point  in  question. 
Tiiis  passage  in  Coke,  therefore,  only  applies  to  the  common  law 
assurances,  b}'  feoffment,  fine,  or  recover}',  which,  when  properly 
employed,  necessarily  passed  an  estate,  either  by  right  or  wrong. 
It  must  be  apparent,  then,  if  the  acceptance  of  a  conveyance 
estops  the  gnintee  from  disputing  the  estate  of  the  grantor,  cove- 
nants for  title  would  be  mere  nullities,  because  no  recovery  could 
be  had  on  them  in  any  case  without  showing  that  the  title  con- 
veyed by  the  covenantor  is  defective. 

§  890.  The  grantee  may  deny  the  seizin  or  title  of  his  grantor, 
for  he  holds  adversely  to  him,  and  it  is  a  matter  of  almost  every- 
day occurrence.'  The  acceptance  of  a  conveyance  does  not  estop 
the  grantee  from  showing  that  the  grantor  liad  no  title  in  the 
land  conveyed,^  unless  possession  accompanies  the  grant,  and  is 
still  held  under  the  deed.  In  this  case  it  will  ha  prima  facie,  if 
not  conclusive  evidence,  that  the  grantor  had  the  right  which  be 
assumed  to  convey.'  But  where  a  vendee  obtains  and  keeps  pos- 
session of  land  under  a  contract  of  sale,  which  is  not  fulfilled,  he 
cannot  set  up  any  defect  in  the  title,  as  a  defense  to  an  action  of 
ejectment  by  the   vendor,  or  on  a  suit  for  the  purchase   money." 


V.  Eastmau,  5  N.  PI.  490;  Lansing  v. 
Montgomery,  2  Johns.  382;  Osteibout 
V.  Shoemaker,  3  Hill,  519;  Sparrow  v. 
Kingman,  1  N.  Y.  248;  Gardner  v. 
Sharp,  4  Wash.  C.  C.  609;  Miles  v. 
Miles,  8  W.  &  S.  135;  Boiling  v. 
Mayor,  3  Rand.  563;  Cundler  v. 
Luudsford,  4  Dev.  &  B.  457. 

^  Gaunt  V.  Wainman,  3  Bing.  N.  C. 
69;  Small  v.  Proctor,  15  Mass.  495; 
Cutter  V.  "Waddingham,  33  Mo.  269; 
Walker  v.  Howell,  34  Tex.  478. 

a  Averill  v.  Wilson,  4  Barb.  180; 
Sparrow  v.  Kingman,  1  N.  Y.  242; 
Gardner  v.  Greene,  5  R.  I.  104;  Dona- 
hue V.  Klassner,  22  :Mich.  252;  Croxall 
v.  Shererd,  5  Wall.  268. 

3  Ward  V.  Mcintosh,  12  Ohio  State, 
231;  Wedge  v.  Moore,  6  Cush.  8; 
Warder  v.  Woodruff,  11  Ark.  82. 


*  Taggart  v.  Stanbury,  2  McLean, 
.543;  Christian  V.  Scott,  1  Stew.  490; 
White  V.  Beard,  5  Port.  94;  Stone  v. 
Gover,  1  Ala.  287;  Culbertson  v.  Par- 
ker, 15  Ind.  234;  Helvenstein  v.  Hig- 
ginson,  35  Ala.  259;  Hacker  v.  Blake, 
17  Ind.  97  ;  Timms  v.  Shannon,  19 
Md.  296;  Mecklein  v.  Blake,  22  Wis. 
498;  Knight  v.  Turner,  11  Ala.  636; 
Hoy  V.  Taliefero,  16  Miss.  727;  Starke 
v.  Hill,  6  Ala.  785;  Bining  v.  Leeman, 
45  111.  246;  Pattou  v.  England.  15  Ala. 
69;  Duncan  v.  Lane,  16  Miss.  744; 
Glenn  V.  Thistle,  23  Miss.  42;  Whit- 
ney V.  Lewis,  21  Wend.  131;  Lum- 
mersou  v.  Marvin,  8  Barb.  9  ;  Picket 
V.  Picket.  6  Ohio  St.  525;  Drennerv. 
Boyer,  5  Ark.  497;  Fowler  v.  Smith, 
2  Cal.  39;  Wear  v.  Parish,  26  111.  40; 
Tissotv.  Throckmorton,   6   Cal.  471; 


Estoppel  ix  Pais.  1013 

A  vendee  who  goes  into  possession  under  the  vendor,  virtually 
occupies  tlie  position  of  tenant,  and  is  not  only  estopped  from  using 
the  defects  in  the  vendor's  title  to  deprive  him  of  the  land  without 
paying  him  for  it,  but  will  be  compelled  to  make  any  steps  which 
he  may  have  taken  to  complete  the  title,  subservient  to  the  pur- 
poses of  the  contract,  instead  of  a  means  of  defeating  it.  The 
estoppel,  in  its  application  to  the  relation  of  vendor  and  vendee, 
is  only  where  the  circumstances  are  such  as  to  render  it  the  duty 
of  the  vendee  to  surrender  the  possession  which  he  had  derived 
from  the  vendor  before  contesting  the  title.' 

§  891.  When  parties  in  an  action  brought  for  the  recovery  of 
land  claim,  through  the  same  person,  they  will  be  obliged  to  treat 
his  title  as  valid,  and  will  not  be  allowed  to  rely  on  that  portion 
which  makes  in  their  favor,  and  reject  the  rest.*  In  summary 
proceedings  for  the  recovery  of  land,  if  the  landlord  establishes 
the  relation  of  landlord  and  tenant,  the  tenant  cannot  dispute  the 
landlord's  title.^  Nor  is  a  bailee  or  agent  allowed  to  dispute  the 
original  title  of  the  person  from  whom  he  has  received  title,*  and 
a  vendee  who  takes  a  deed  of  an  estate,  in  pursuance  of  previous 
articles  of  agreement,  is  estopped  to  deny  the  vendor's  title,  and 
an  agreement  under  seal  to  accept  a  conveyance  or  lease,  will 
estop  the  covenantee  from  disputing  the  title  of  the  covenantor, 
in  a  subsequent  action  for  the  recovery  of  the   land/     Notwitli- 

Wiley  V.   Boward,  Iri  Ind.  169;  Kin-  v.  Hill,  4  Barb.  419;  Sparow  v.  King- 

ney  V.   Osburn,    14   Cal.  113;  Wright  man,  1  N.  Y.  242;  (rarduer  v.  Greene, 

V.  Blatchley,    3   lud.    101;    Smitli  v.  5  R.  I.  t04;  Glen  v.  Gibson,    9  Barb. 

Biisliy,  15  Mo.  387;  Smith  v.  Winston,  634;  Flanders   v.  Train,  13  Wis.  59G. 

3Miss.  601;  Lynch  V.  Baxter,  4   Tex.  MVard   v.    McLitosh,    13   Ohio  St. 

431 ;  Wanser  V.  MessJer,    39  N.    J.  L.  231;  Jackson  v.  Ireland,  3  Wend.   99. 

256;  Lee  v.  Porter,  5  -Tphns.  Ch.   268;  »  ^.^.j  ^   Kelsey,  43  Barb.  583. 

E.stcp  V.  Estep,  23  Ind.  114;  ]Miller  v.  ^  Vosburgh  v.  Huntington,  15  Abb. 

Larson,  17  Wis.  634;  Bush  v.  Marshall,  254. 

6  How.   284;    Ludlow  v.  Gilman,  18  ^  gayles  v.   Smith,    13    Wend.    57; 

Wis.    552;    Willison    v.    Watkins,    3  Tindal  v.  Den,  1  N.  J.  651 ;  Jackson  v. 

Pet.    43  ;    Bowers   v.  Keesecker,   14  Ayres,  14  Johns.  225;  Springstein  v. 

Iowa,  301;  Gillespie  V.  Battle,  15  Ala.  Scliermerhorn,    12  Johns.  357;  Town 

276;  Robinson  V.  Snyder,    25   Pa.  St.  v.  Butterficld,    97  Mass.  105;  Tilman 

203;     Galloway    v.    Finley,    13    Pet.  v.  Little,  13  111.  339;  Love  v.  Edmond- 

364;  Jackson   v.  Ilotchkiss,    6   Cow.  son,  1   Ired.    153;    Winnard   v.  Rob- 

401.  bins,  3  Humph.  614;  Clee  v.  Seaman, 

»  Blight  V.  Rochester,  7Wheat.535;  31  Mich.  287. 
Price  V.  Johnson,  1  Ohio  St.  390;  Hill 


1014  The  Law  of  Estoppel. 

standing  the  cases  cited,  in  support  of  the  propositions,  there  is 
no  general  or  inflexible  rule,  which  prevents  a  grantee  from  show- 
ing that  the  grantor  had  no  title  that  was  capable  of  passing  by 
the  deed.  A  person  coining  into  possession  of  land  under  an 
executory  contract  of  sale  will  not  be  permitted  to  set  up  an  out- 
standing elder  grant  against  his  vendor.' 

§  892.  The  acceptance  of  a  devise  estops  the  devisee  to  set 
up  title  in  opposition  to  the  will  both  at  law  and  equity.*  By 
analogy  to  the  estoppel  between  landlord  and  tenant  one  who  had 
been  let  into  possession  by  a  devisee  is  estopped  from  disputing 
the  validity  of  the  will  as  against  a  remainder-man,  who  claimed 
under  it  to  enter  on  the  decease  of  the  devisee.'  SVhere  two 
persons  both  bearing  the  same  name  are  entitled  to  lands  and 
patents  issue  therefore  to  each  for  certain  lands  differently 
located,  and  in  the  deliver}-  of  the  patents  a  mistake  occurred,  by 
which  the  patent  of  one  was  delivered  to  the  other,  but  both 
acted  on  the  fact  of  the  case  as  existing  at  the  time  and  profited 
out  of  the  same,  without  objection  being  made  on  the  part  of 
either  of  them,  neither  their  grantees  nor  any  other  person  can 
raise  the  question  of  such  mistake,  in  the  delivery  of  the  patents, 
each  of  them  and  their  representatives  are  estopped  from  claiming 
the  land  of  the  other.*  Where  a  state  legislature  has  authorized 
the  conveyance  of  a  certain  tract  of  land  to  a  person,  the  pre- 
sumption being  that  he  solicited  the  grant,  and  having  acted 
under  it,  he  and  those  claiming  under  him  are  estopped  from 
denying  the  title  of  the  state.^  A  person  who  petitions  a  legisla- 
tive body  for  a  grant  of  land  stated  by  him  to  be  vacant, °  or 
on  the  ground,  that  he  is  the  only  surviving  heir  and  legal 
representative,  is  estopped  from  claiming  the  land  as  tenant  by 
the  curtesy.' 

§  893.  The  bailment  or  lease  of  chattels  creates  an  estoppel  of 

'  Hamilton   v.     Taylor,    Litt.     Sel.  ^  Board   v.    Board,    L.   R.   9  Q.  B. 

Cas.    444:    Sikcs  v.  Basnight,  2  D.  &  48. 

B.  157;  Fowler  V.  Woodyard.  6  J.  J.  ■'Smith   v.    Smith,    14    Gray,    533; 

Marsh.  606.  Gardner  v.  Ladue,  47  HI.  211. 

«Millerv.  Jones,  29  Ala.  174;  Kranz  ^  (J-Avy  x.    Whiiney,  48    Me.    516; 

V.  Kroger,  20111.  74;  Hayden  v.  Davis,  Thrower  v.  Wood,  53  Ga.  458. 

9  Cal.  573.  « Tubbs  v.  Lynch,  5  Harriug.  521. 

'  3Iontgomery  v.  Ives,  21  Miss.  161. 


Estoppel  in  Pais.  1015 

the  same  nature  as  that  arising  from  a  lease  of  land,  and  estops 
the  bailee  from  disputing  the  title  of  the  bailor,  or  setting  up  an 
outstanding  title  in  a  third  person,  but  leaves  him  free  to  excuse 
the  failure  or  refusal  to  return  the  thing  bailed,  by  proof  that  it 
has  been  delivered  np  to  the  true  owner,  or  is  withheld  in  conse- 
quence of  a  notice  or  demand  from  him  and  for  his  use  and  ben- 
efit.' Thus  S.  gave  a  receipt  to  the  plaintiff,  a  deputy  sheriff, 
for  goods  attached  on  a  writ  against  E.  Afterwards,  one  H., 
claiming  to  be  the  owner  of  the  property,  sued  the  officer  in 
trover  for  it,  and  that  suit  was  finally  determined  against  him. 
In  an  action  of  trover,  brought  by  the  officer  against  the  receiptor 
for  the  same  property — Held,  that  the  defendant  could  not  be 
permitted  to  show  title  to  the  propert^^  in  II.  b}'  way  of  defense, 
being  concluded  therefrom  by  the  judgment  in  the  suit  of  11. 
against  the  plaintiff.^  It  has  also  been  held  that  an*  auctioneer, 
who  has  been  sued  for  the  proceeds  of  goods  sold  in  the  course  of 
his  business  in  behalf  of  another,  is  estopped  from  alleging  that 
they  were  his  own,  in  bar  of  an  action  brought  for  the  proceeds, 
or  in  mitigation  of  damages.'  A  bailee  or  agent  cannot  dispute 
the  original  title  of  the  person  from  whom  he  has  received  prop- 
erty, and  one   who  takes   goods   of   another  to  return  on  the 

>  Ogle   V.    Atkins.    5    Taunt.    759;  ling  v.  Birnie,  7  Bing.  339;  "White  v. 

Watson  V.  Lane,  11  Exch.   769;  Bur-  Bartlctt,  9  Bing.  378;  Holl  v.   Griffin, 

nett  V.  Fulton,  3  Jones,  486;  Bates  v,  10  Bing.    256;  Cheesman  v.  Exall.  6 

Stanton,  1   Duer,  79;  Butler   v.  Ken-  Excliq.    341;  Biddle   v.  Bond,  6  B.  & 

ner,  14  Mart.  274;  Ilaj^den  v.  Davis,  S.  225;  Wilson  v.  Anderson,    1  B.  «& 

9  Cal.  513;  Miller  v.    Jones,  29  Ala.  A.  450;  Shelbury  v.  Scotsford,  Yelv. 

174;    Krautz  v.    Kroger,    20    111.   74;  22;  Bettely   v.    Reed,   4  Q.    B.    551; 

Lockwood   V.    Slevin,    26    Ind.    124;  Woodley  v.  Coventry,  2  H.  &  C.  164; 

Phillips  V.  Hal[,  8  Wend.  610;  Drown  Gillette  v.  Hill,  2  C.&  M.  530;  Knights 

V.  Smith,  3N.  II.  299;  King  v.  Rich-  v.  Wiffin,  L.  R.  5  Q.  B.  560. 
ards,  6  Whart.  418;  Eastman   v.  Tut^  «  Spear  v.  Hill,  54  N.  II.  87. 

tie,  1  Cow.  248;  Hawes   v.  Watson,  2         ^  Osgood   v.    Nichols,  5   Gray,  420; 

B.  &  C.  540;  Thorn  v.  Tilbury,    3   H.  Learned    v.    Bryant,    13   Mass.    224; 

&N.  534;  Sheridan  v.  Quay  Co.,  4  C.  Fisher  v.    Bartlett,   8   Me.    122;    Sin- 

B.  (N.  S.)617;  Chapman  v.  Searle,  3  clair  v.  Murphy,  14  ^Nlich.  392;  Lund 

Pick.  38;  Stouard  v.  Dunkin,  2  Camp.  v.  Bank,  37  Barb.  129;  King  v.  Rich- 

344;  Dixon  v.  Hammond,  2   B.    &  A.  ards,  6  Whart.  418;  Hardman  v.Will- 

310;  Jewett  v.  Torrey,  11   Mass.   219;  cock,  9  Bing.  382;  Gosling  v.  Birnie,  7 

Wallace   v.   Mathews,    39    Ga.    617;  Bing.    338;    Cheesman    v.    Exall,    6 

Dixon  v.  Hammond,  2  B.  &  A.  310;  Exchq.  341;  Placer  Co.    v.  Austin,  8 

Nicholson   v.  Knowles,    5    Mad.  47;  Cal.  303;  Rogers   v.    Weir,   34  N.  Y. 

Roberts  v.  Ogiiby,  9  Price,  269;  Gos-  463. 


1016 


The   Law  of  Estoppp:l. 


occurrence  of  a  certain  event ;  after  the  event  the  bailor  will  not 
be  conii)clled  to  show  a  legal  title  to  the  goods.'  The  defendant 
is  estopi)ed  to  set  up  title  in  a  third  person,  as  he  would  be  in  an 
action  for  use  and  occupation.' 

§  894:.  An  agent  or  bailee  is  precluded  from  questioning  the 
title  of  his  principal  to  the  subject  matter  of  the  agenc}'  or  bail- 
ment.^ So  a  collector  of  taxes  cannot  deny  the  right  of  the 
county  thereto,  because  illegally  levied."  A  party  having  once 
admitted  another's  title,  by  suing  on  a  claim  in  his  name,  cannot 
defeat  a  title  thus  admitted.^  So,  where  a  county  assessed  real 
estate  to  a  railroad  company,  and  accepted  a  large  sum  as  a  com- 
promise and  payment  of  the  taxes  from  the  railroad  company,  it  is 
estopped  from  denying  the  company's  OMmership.'  The  general 
rule  is,  that  whenever  one  acknowledges  a  title  in  another,'  or 
recognizes  a'  claim  or  lien  of  another,  such  person  is  estopped 
from  subsequently  disputing  its  validity.^     So  one  acquiescing  in 


'  McNeil  V.  Philip,  1  McCord,  393. 

"^  Manning  v.  Norwood,  2  Kep.  Con. 
Ct.  274;  Iliiyden  v.  Davis,  9  Cal.  573; 
Reed  v.  Reed,  13  Iowa,  5. 

3  Gosling  V.  Birnie,  7  Bing.  339; 
Holl  V.  Griffin,  10  Bing.  246;  White 
V.  Bartlett,  9  Bing.  878;  Kieran  v. 
Sannders,  6  A.  &  E.  515;  Cheesman  v. 
Exall.G  Exchq.  341 ;  Milesv.  Furber,  L. 
R.  8Q.  B.  377;  Dickson  v.  Hammond, 
3  B.  &  xi.  310 ;  Benson  v.  Hcathorn,  1 
Y.  &  C.  141;  Scott  V.  Crawford,  4  M. 
&  G.  1031;  Roberts  v.  Oglesby,  9 
Price.  260;  Nicholson  v.  Knowles,  5 
Mad.  47;  Ilawes  v.  Watson,  2  B.  &  C. 
540;  Ilarman  v.  Anderspn,  2  Camp. 
243;  Van  Horn  v.  Fonda,  5  Johns.  Ch. 
459;  llolbrook  v.  Wright,  24  Wend. 
169;  Barnard  v.  Koljbe,  54  N.  Y. 
516;  MiGill  V.  Hiudsdale,  6  Conn. 
469;  Collins  v.  Tillou,  26  Conn.  368; 
Bain  v.  Clark,  30  Mo.  252;  Cowing  v. 
Greene,  45  Barb,  585;  Ilardenljurg  v. 
Bacon,  33  Cal.  356;  Hancock  v. 
Gomez,  58  Barb.  420;  Hammond  v. 
Christy,  5  Rob.  (N.  Y.)  160;  Bray  v. 
Chandler,  37  E.  L.  &  Eq.  396; 
Placer  Co.  v.  Austin,  8  Cal.  303;  Rhea 


V.  Pnrycar,  26  Ark.  344  ;  White  v. 
Ward.  26  Ark.  445;  Biddle  v.  Bond,  6 
B.  &  S.  225;  Wallace  v.  Mathews.  39 
Ga.  617;  Bates  v.  Stanton,  1  Duer,  79; 
Butler  V.  Kenner,  14  Mart.  274;  Thorn 
V.  Tilbury,  3  H.  &  N.  534;  Sheridan 
V.  Quay  Co.,  4  C.  B.  N.  S.  617;  King 
V.  Richards,  6  Whart.  418;  Bettely  v. 
Read,  4  Q.  B.  511. 

'  Placer  Co.  v.  Austin,  8  Cal.  303. 

«  Topp  V.  Pollard,  24  Miss.  683; 
Manigault  v.  Deas,  1  Bail.  283;  Will- 
iams V.  Allen.  14  Ga.  81;  Adams  v. 
Burlington,  39  Iowa,  507;  ]Millor  v. 
Jones,  26  Ala.  247,  (Juggins  v.  Vaugor- 
der,  10  Mich.  523. 

«  Adams  Co.  v.  R.  R.  Co.,  39  Iowa, 
507. 

'  Laughlin  v.  Mitchell,  14  F.  R.  382; 
Harris  v.  Powers,  57  Ala.  139;  Territ 
V.  Covenhoven,  79  N.  Y.  400;  Betts  v. 
AVurth,  32  N.  J.  E.  82;  Collier  v. 
Tfenning,  34  N.  J.  E.  82;  Bowdish  v. 
Dubuque,  38  Iowa,  341. 

sBroyles  V.  Newlin,  59  Tenn.  191; 
Moale  V.  Baltimore,  56  Md.  496;  Hart 
V.  Huguet,  33  La.  Ann.  362;  Stuart  v. 
Ins.  Co.,  9  Lea,  104;  Erhardt  v.  Boar, 


Estoppel  in  Pais.  1017 


the  title  of  another  will  be  estopped  from  denying  it.'  A  party 
i  giving  a  bill  and  certificate  of  storage,  is  estopped  from  saying 
j'  he  never  had  the  goods. ^  So  where  the  owner  of  chattels,  sold 
i  at  a  void  judicial  sale,  hires  them  from  the  jDurchaser  with  full 
[  knowledge  of  all  the  facts,  he  is  estopped  from  disputing  the  lat- 
ji  ter's  title,  nnless  such  hiring  is  only  colorable,  and  a  cloak  for 
I  usury." 

I   3  McCrarj',  19;  Howry's  Appeal,  94  nell  v.  Kelsey,  10  N.  Y.  412;  S.  C,  4 

Pa.  St.  376;   Nelson  v.  Claybrooke,  4  Sandf.  403;  Brown  v.  Goddard,  13  R. 

Lea,  687;   Bally  v.  Williams,  73  Mo.  I.  76;  Case  v.  Trapp,  49  Mich.  49. 

I   310;  Belts  V.  Wurth,  32  N.  J.  E.  82.  ^  Chapman   v.    Seaile,    3  Pick.  38; 

'  King  V.  Mabry,  3  Lea,  237;   Cole-  Stewart  v.  Ins.  Co.,  9  Lea,  104. 

man  V.  Smith,  55  Tex.  254;  Stockham  ^  Trible   v.    Anderson,   63  Ga.   31; 

V.  Browning,  18  N.  J.  E.  390;  O'Don-  Campbell  v.  Trunnell,  67  Ga.  518. 


1018  The  Law  of  Estoppel. 


CHAPTER    XIY. 

APPLICATION  OF  ESTOPPEL  TO  MORTGAGES. 

TECHNICAL    ESTOPPEL,    RECITALS,    EQUITABLE    ESTOPPEL. 

Section  895.  The  doctrine  that  a  grantee,  from  one  who  had 
no  title  at  the  time  of  the  conveyance,  but  has  subsequently 
acquired  one,  takes  it  by  estoppel^  in  virtue  of  the  covenants  in 
the  deed,  is  applicable  to  mortgages.  Thus,  a  party  who  is  in 
actual  possession  of  land,  but  without  title,  mortgages  it  with 
warranty,  and  afterwards  acquires  a  good  title  by  purchase,  the 
warranty  takes  immediate  effect  on  the  title  so  acquired,  and 
transfers  it  to  the  mortgagee,  not  only  as  against  the  mortgagor 
himself,  but  those  claiming  under  him  subsequently  to  the  con- 
veyance. So  where  one  mortgaged  land,  which  was  at  the  time 
subject  to  a  judgment  lien  (the  deed  containing  what  was  equiv- 
alent to  a  warranty),  and  then  took  the  benefit  of  the  bankrupt 
law,  and  afterwards  purchased  the  property  when  sold  under  the 
judgment  lien,  he  was  estopped  by  his  covenant  from  setting  up 
such  after  acquired  title  to  defc?t  the  mortgage.^  A  person  who 
contracting  an  obligation  to  another,  grants  a  mortgage  on  prop- 
erty of  which  he  is  not  then  the  owner,  the  mortgage  is  valid  if 
the  debtor  ever  afterwards  acquires  the  ownership  of  the  prop- 
erty by  whatever  right."  A  release  by  a  mortgagee  to  the 
liolder  of  the  equity  of  redemption  passes  by  the  warranty,  con- 
tained in  the  prior  grant  by  the  releasee,  and  gives  the  grantee 
an  unincumbered  title  against  a  subsequent  assignment  of  the 
mortgage,  notwithstanding  an  allegation  that  a  mortgage  being  a 
chattel  interest,  and  that  the  rules  applicable  to  estates  in  lands 
dill  not  govern  mortgages.'  This  is  on  the  principle  that  an 
after  acquired  title  inures  to  the  benefit  of  the  grantee. 

'  Busliv.  Cooper,  18  How.  82;  Jarvis  402;  Lincoln  v.   Emerson,  108  Mass. 

V.  Aikcus.  24  Vt.  635.  90;  Rigg  v.  Cook.  9  111.  330. 

'■'  Amounott  v.   Annis,  16  La.  Ann.  ^  Mickle  v.    Townsend,    18  N.   Y. 

225;  R.  R.  Co.  v.  Cowdrey,  11  Wall.  575. 
1S4;  Williiik  V.  Can-l  Co.,  3  N.  .1.  E. 


Application  to  Mortgages.  1019 

§  896.  A  mortgage  by  husband  and  wife,  of  her  land,  with 
covenants  of  warranty  by  both,  estops  both  to  deny  her  title  at 
the  time  of  the  conveyance.  Nor  can  they,  in  an  action  upon  the 
mortgage  against  them,  be  peiimitted  to  show  that  after  the  com- 
mencement of  such  action  she  acquired  a  new  title,  under  which 
they  hold  possession.  The  doctrine  of  rehutter,  to  avoid  circuity 
of  action,  is  not  admissible  in  such  cases.'  Two  successive  mort- 
gages, with  covenants  of  warranty,  were  made  of  the  same  land. 
The  second  mortgagee  bought  the  first  mortgage,  receiving  from 
the  first  mortgagee  a  quit-claim  deed.  On  the  same  day,  the 
second  mortgagee  gave  a  mortgage,  with  covenants,  to  a  creditor. 
There  was  no  proof  which  of  the  two  last  named  deeds  was  first 
delivered  ;  but  the  grantee  of  one  was  a  subscribing  witness  to 
the  other,  and  both  were  attested  by,  and  acknowledged  before 
the  same  magistrate.  The  right  of  redemption  of  the  original 
mortgagor  having  expired,  the  last  mortgagee  brings  ejectment 
against  him  for  the  land.  The  deed  to  plaintiff  would  be  pre- 
sumed to  have  been  made  after  the  deed  to  his  grantor ;  or,  if 
not,  the  covenants  in  the  deed  first  executed  had  the  effect  to  vest 
a  title  in  the  plaintiff,  when  the  conveyance  was  made  to  him  by 
estoppel  j  and  this  title  was  effectual  against  the  defendant.'' 

§  897.  A  statutory  foreclosure  of  a  usurious  mortgage,  and  a 
sale  of  the  mortgaged  premises,  followed  by  a  sale  thereof  to 
a  third  person  for  a  valuable  consideration,  without  notice  of  the 
usury,  will  not  convey  a  valid  title  to  the  land,  or  estop  the  mort- 
gagor from  alleging  usury  in  the  mortgage."  But  if  judgment 
has  been  recovered  upon  a  usurious  contract  secured  by  mortgage, 
and  a  new  mortgage  given,  the  mortgagor  cannot  resist  a  suit  on 
the  latter,  upon  the  grounds  of  usury.  The  judgment  upon  the 
contract  which  was  effected  by  usury  having  estopped  the  debtor 
from  showing  it  in  an  action  upon  the  judgment  ;  he  is  equally 
estopped  in  a,  suit  on  the  mortgage.*  So  where  a  moi-tgagee  sues 
upon  his  mortgage,  and  the  mortgagor  defends  upon  the  ground 
of  usury,  but  fails  in  such  defense,  and  afterwards  conveys  his 
right  in  the  land,  the  purchaser  cannot  maintain  ejectment  against 

1  Nash  V.  Spatford,  10  Met.  102.  "  Thatcher  v.    Gammon,    13  Mass. 

»  Dudley  v.  Cad  well.  19  Conn.  226;  268;    Davis  v.  Converse,  35  Vt.  503; 

Wilson  V.  Wilson,  32  Barb.  328.  Divall  v.  Atwood,  41  N.  H.  443. 
8  Wyland  v.  Stafford,  10  Barb.  558. 


1020  The  Law  of  Estoppel. 

the  mortgagee  upon  this  ground,  behig  estopped  by  the  former 
jiKlgrnent.'  In  tlie  case  of  a  mortgage  by  Imsband  and  wife  of 
her  estate,  they  remain  in  possession  till  breach  of  condition,  and 
the  mortgagee  brings  an  action  to  foreclose  against  both,  the  wife 
must  be  joined  as  defendant.  By  joining  in  the  mortgage  she 
parts  with  her  estate  pro  tantOy  but  no  further.  The  equity  of 
redemption  is  still  hers,  and  cannot  be  disposed  of  by  the  husband 
without  her  consent,  an  entry  in  pais,  with  his  assent,  but 
unknown  to  her,  will  not  foreclose  her  right  to  redeem,  for  the 
reason,  that  in  a  suit  for  foreclosure  she  must  be  joined.  In  case 
of  his  death,  the  action  proceeds  against  her.  Sh&  is  entitled  to 
the  benefit  of  the  conditional  judgment  and  may  pay  the  debt, 
and  prevent  a  foreclosure.  The  object  of  the  statutory  action  is, 
to  give  the  mortgagee  such  possession  as  will  result  in  an  absolute 
title,  unless  redeemed.  It  is  inconsistent  with  the  plain  principles 
of  law  and  justice,  to  hold  that  she  and  her  estate  shall  be  bound 
by  the  judgment,  if  she  cannot  be  a  party  to  the  suit.* 

§  898.  One  may  hold  two  mortgages  on  two  different  estates 
to  secure  one  debt,  and  foreclose  one  only.  Whether  this  will  bar 
a  foreclosure  of  the  other,  depends  on  the  value  of  the  property 
foreclosed,'  if  equal  in  value  to  the  debt,  it  will  have  that  effect. 
A  joint  bond  from  A,  and  B.  was  secured  by  mortgage  of  A. 
Afterwards  A.  gave  a  bond  to  B.  assuming  the  former,  and 
indemnifying  B.  against  it.  The  parties  having  paid  each  half  of 
the  first  bond,  B.  procured  an  assignment  of  it  to  a  third  person, 
for  the  purpose  of  obtaining  a  foreclosure.  Held,  a  bill  to  fore- 
close by  the  assignee  could  not  be  maintained.*  The  same  estop- 
pel applies  to  the  mortgagee,  who  has  been  permitted  to  come  in 
and  defend  the  suit.  The  court  say  •:  "  In  substance,  it  seems  to 
ns  to  stand  on  the  same  reason  with  the  other  cases,  in  which  it  is 
held  that  the  debtor  in  execution  cannot  set  up  a  want  of  title  in 
himself.  As  he  has  had  the  benefit  of  the  sale  in  the  payment  of 
his  debts,  he  ought  not  to  say  that  he  had  nothing  in  the  prem- 
ises ;  and  he  cannot,  with  truth  say  so,  as  he  had,  at  least,  tiie 
possession  and  enjoyment  of  the  land,  and  those  he  ought  to  give 
np  ;  and  to  recover  them  is  the  object  of  the  ejectment.     The 

1  Adams  v.  Barnes,  17  Mass.  365;         =*  Burpee  v.  Parker,  24  Vt.  567 
Davis  V.  Converse,  35  Vt.  503.  *  Sturges  v.  Alyea,  3  Sand.  Ch.  188. 

*  Swan  V.  Wiswall,  15  Pick.  126.  s  Davis  v.  Evans,  5  Ired.  525. 


Application  to  Mortgages.  1021 

same  principle  applies  equally  to  a  case  in  which  the  debtor  has 
only  an  equitable  interest.  The  act  of  1812  authoi'ized  the  sale 
of  an  equity  of  redemption  under  ^  fieri  facias.  This  act  makes 
the  equity  of  redemption,  when  sold  under  execution,  a  legal 
interest,  to  the  extent,  at  least,  of  enforcing  it  by  the  recovery  of 
possession  from  the  mortgagor  himself,"  So  it  has  been  held^ 
;at  a  tenant  of  the  mortgagor,  or  a  purchaser  from  him  by  exe- 
cutory contract,  cannot  dispute  the  title  of  the  execution  pur- 
chaser.^ 

§  899.  In  a  foreclosure  proceeding  a  decree  is  conclusive  on 
the  estate  vested  in  the  defendant  at  the  date  of  its  rendition. 
Where-a  defendant  in  such  suit  claims  the  entire  estate,  subject 
to  the  mortgage,  and  the  complainant  admits  it  by  failing  to 
reply,  the  decree  will  be  conclusive  on  him  and  estop  him  from 
setting  up  any  other  claim.  Thus,  where  a  widow  alleged  that 
the  property  incumbered  was  hers,  and  the  court  found  that  her 
deceased  husband,  had  a  life  estate  therein,  and  decreed  that  to 
be  sold,  the  mortgagee  was  confined  to  the  life  estate,  and  was 
estopped  from  subsequently  claiming  that  the  property  belonged 
absolutely  to  the  husband.  Where  parties  are  made  defendants 
to  a  foreclosure  suit  on  the  general  allegation  that  they  claim 
some  interest  in  the  premises  as  subsequent  incumbrancers,  pur- 
chasers, or  otherwise,  a  general  decree  barring  all  the  defendants 
and  those  claiming  under  them,  will  preclude  them  from  assert- 
ing any  rights  acquired  from  the  mortgagor  subsequent  to  the 
execution  of  the  mortgage,  but  will  not  divest  them  of  any  para- 
mount rights.^  Thus,  a  right  of  homestead  cannot  be  claimed 
after  a  decree  foreclosing  the  mortgage  has  been  rendered  in  an 
action  where  tlie  husband  and  wife,  parties  to  the  mortgage, 
were  properly  made  defendants.  But  the  right  to  dower  is  a 
paramount  right,  and  if  the  wife  of  a  mortgagor  after  becoming 
a  widow,  be  made  a  party  to  a  suit  to  foreclose  a  mortgage  exe- 
cuted by  her  husband  alone,  and  there  is  no  reference  made  in 
the  bill  as  to  her  claim  for  dower,  the  decree  will  not  affect  her 

*  Dougherty  V.  Linthicum,  8  Dana,      Lewis  v.  Smith,  11  Barb.  156;  Bank 
194.  V.  Flag.ij,  8  Barb.  Ch.  318;   Elliott  v. 

5  Frost  V.    Coou,    30    N.    Y.   444;      Page,  1  Paige,  363. 


1022  The  Law  of  Estoppel. 

dower  interest.     Adverse  claims  that  are  set  up  and  litigated  in 
foreclosure  proceedings  are  conclusively  and  finally  determined.' 

§  900.  It  is  provided  by  statute  in  Georgia  and  South  Caro- 
lina, that  a  mortgagor  who  executes  a  second  mortgage  without 
disclosing  in  writing  to  the  second  mortgagee  the  existence  of 
the  prior  mortgage,  is  not  allowed  to  redeem  the  second  mort- 
gage. In  South  Carolina,  if  a  person  suffer  a  judgment  or 
enter  into  a  statute  or  recognizance  binding  his  land,  and  after- 
wards mortgages  it,  without  giving  notice  in  writing  of  the 
prior  incumbrance,  unless  within  six  months  after  a  written 
demand  he  clear  off  such  incumbrance,  lie  is  not  allowed  to 
redeem.  These  are  substantially  re-enactments  of  an  act  of  Par- 
liament. There  are  provisions  similar  to  this  (the  concealment 
of  a  prior  incumbrance  by  the  mortgagor)  in  Tennessee  and 
North  Carolina. 

§  901.  Where  a  mortgagee  has  taken  possession  of  the  mort- 
gaged premises  under  a  deed  from  the  mortgagor,  he  is  not  at 
liberty  to  repudiate  the  mortgagor's  title  afterwards,  and  all  re- 
leases obtained  to  cover  defects  in  the  title  must  be  held  to  be 
obtained  for  the  support  of  the  mortgagor's  title.^  So,  where  a 
testator  bequeaths  to  his  widow  all  his  personalty,  and,  incum- 
bered by  two  mortgages  of  real  estate,  with  a  provision  that  such 
portion  of  the  second  mortgage  debt  not  made  out  of  the  laud 
should  be  payable  out  of  his  personalty,  and  the  assignee  of  the 
first  mortgage  under  a  promise  to  pay  off  the  second,  was 
permitted  by  the  widow  to  take  and  retain  possession  of  the  es- 
tate and  profits  until  the  limitation  had  expired,  by  inducing 
her  to  believe  that  he  held  under  her,  although  he  had  secured 
the  tax  title  in  an  action  by  the  subsequent  mortgagee  to  fore- 
close, the  assignee  was  estopped  as  against  the  widow  to  deny 
that  he  held  under  her,  and  the  plaintiff  might  avail  himself  of 
the  estoppel  in  his  own  behalf.'  A  party  who  accepts  a  mort- 
gage made  to  him,  is  estopped  to  deny  the  power  of  the  mort- 

'  Lewis    V.  Smith.    9  N.    Y.    502;  Mich.    361 ;    Renshaw    v.    Tayl(jr,   7 

Baxter  v.   Dear,  24  Tex.  17;    Lee  v.  Oreg.  315. 

Kingsbury,  13  Tex.  17.  ^  Schumaker  v,  Hoeveler,  22  Wis. 

'  Farmers'    Bank    v.    Bronson,    14  43. 


Application  to  Mortgages.  1023 

gagor  to  make  the  convejance,  nor  can  he  set  up  title  anterior  to 
his  mortgage.' 

§  902.  By  a  mortgage  containing  the  usual  covenants  of 
seizin  and  warrant}',  the  mortgagor  and  his  privies  are  estopped 
from  denying  the  title  of  the  mortgagee  or  of  his  assignee,  nor 
can  they  set  up  any  after  acquired  title  against  such  covenants  or 
that  no  title  passed  by  the  mortgage.^  Or  deny  his  title  at  the 
time  of  its  execution.^  But  there  is  an  exception  to  the  rule^ 
thus,  where  P.  and  wife  joined  in  signing  the  blank  form  of  a 
deed  of  conveyance,  designed  to  be  thereafter  filled  up,  so  as  to 
convey  a  tract  of  land  to  a  school  district  as  a  site  for  a  school 
house,  tlie  signing  and  sealing  was  attested  by  two  witnesses  and 
acknowledged  before,  and  certified  to  by  a  justice  of  the  peace, 
according  to  law.  Afterwards  the  husband  without  the  knowl- 
edge or  consent  of  his  wife,  filled  up  the  deed  so  as  to  make  it, 
on  its  face,  a  mortgage  on  a  large  tract  of  land,  to  secure  a  loan 
of  four  thousand  dollars  ;  the  mortgagee  received  the  same  in 
good  faith,  without  notice  of  any  defect  or  informality  in  its  ex- 
ecution, "and  thus  executed,  was  duly  recorded.  The  husband, 
and  all  subsequent  judgment  creditors,  and  lien  holders  under 
him,  were  estopped  from  denying  the  validity  of  the  mortgage.* 
The  judgment  creditors  take  no  greater  estate  than  their  debtor 

'  Brown   v.    Coombs,  29   N.   J.  L.  16  La.  Ann.  327;   Wanzer  v.  Blancli- 

36;  Tarter  v.  Hall,  3  Cal.  263;  Conklin  ard,  3  Mich.  11;  Whitney  v.  Ruckman, 

V.  Smith,  7  Ind.  107.  13  Cal.  556;  Floyd  Co.  v.  Morrison,  40 

-  Cross  V.  Robinson,  21    Conn.  379;  Iowa,   188;  Middleton   v.    Findla,  25 

Clark  V.  Baker,  14  Cal.  612;  Frink  v.  Cal.  76;  O'Meara,  v.  North,  &c.  Co., 

Darst,  14  111.  304;   Van  Rensselaer  v.  2  Nev.  112;  Stewart  v.  Boyle,  23  La. 

Kearney,    11    How*.    332;    Palmer    v.  Ann.  83;  Boone  v.  Armstrong,  87  Ind. 

Meade,  7  Conn.  149;   Bogy   v.  Shoab,  168;  Womble  v.  Leach,  83  N.  C.  84. 

13  Mo.  379;  Cook  v.  Brogand,  5  Ark.  ^  p^i^  ^   pioward,  6  Nev.  304;   Ins. 

699;   Morrison  v.  Wilson,  30  Cal.  344;  Co.  v.  Woodbury,  45  Me.  447;  Strong 

Reeder    v.    Craig,    3    McCord,    411;  v.  AVaddell,  56  Ala,  411;    Boisclair  v. 

Blakemore    v.    Taber,    22   Ind.    466;  Jones.  36   Ga.  499;    Walker   v.   Sedg- 

Washabaugh  v.  Entriken,  34  Pa.   St.  wick,  8  Cal.  398;  Allen  v.  Lalhrop,  46 

74;  Conover  V.  Porter,  14  Ohio  St.  450;  Ga.  133;   Bailey  v.  Acaden-y,  12  Mo. 

French    v.    Spencer,    21    How.    228;  174  ;    Newton    v.  McLain,    41  Barb. 

Kirkaldie  v.  Larrabee,    31    Cal.   455;  285;    Lee   v.    Porter,    5    Johns.    Ch. 

Reed  v.  Sheply,  6  Vt.  602;  Palmer  v.  268. 

Smith,    10    N.    Y.    303;   Gotham   v.  ■•  Connover  v.    Porter,  14  Ohio  St. 

Gotham,  55  N.  H.  440;  Hoyt  v.  Dim-  450. 
end,  5  Conn.  479;  Amounet  v.  Annis, 


1024  The  Law  of  Estoppel. 

lias,  but  as  to  the  wife,  the  mortgage  being  a  fraud,  she  is  not 
estopped  to  claim  her  inchoate  right  of  dower. 

§  903.  One  who  is  asked  to  become  the  purchaser  of  a  demand, 
or  to  accept  it  as  a  security,  may  apply  to  the  debtor  for  informa- 
tion and  if  the  latter  states  in  response  to  such  an  inquiry  that  he 
has  no  defense,  or  that  the  amount  is  due,  he  cannot  retract  the 
admission  after  it  has  been  acted  upon  by  the  assignee ;'  where 
such  a  dechiration  is  made  in  writing  by  a  mortgagor  it  becomes 
a  muniment  of  title,  and  may  be  conclusive  in  favor  of  third  per- 
sons who  give  vahie  on  the  faith  of  it,  or  whom  it  contributes  to 
mislead."  But  the  estoppel  will  not  arise  unless  the  assignee 
changes  his  position  for  the  worse  in  reliance  on  the  declaration.' 
And  consequently  not  in  favor  of  one  who  takes  an  assignment 
of  mortgage  as  security  for  an  antecedent  debt.* 

The  assignee  must  show  that  he  parted  with  a  consideration,  and 
what  the  consideration  was."  A  mortgagor  executed  an  acknowl- 
edgment under  seal,  and  duly  acknowledged  before  a  magistrate, 
that  the  debt  was  due,  and  that  the  assignment  was  made  with 
his  assent ;  Held  not  conclusive  in  favor  of  the  assignee  without 
proof  that  he  was  a  purchaser  for  value."  One  who  makes  a 
formal  admission  of  the  validity  of  a  mortgage  as  a  means  of 
inducing  a  third  person  to  accept  it  as  a  collateral  security,  enters 
into  a  direct  engagement  with  the  assignee'  and  should  be  as 
much  bound  as  if  he  were  the  maker  of  an  accommodation  note, 
and  such  should  certainly  be  the  effect  when  the  acknowledgment 
takes  the  form  of  a  covenant,  or  is  under  seal. 

A  promise  to  the  assignee  subsequently  to  the  transfer  fails  as 

1  Buckiicr  V.   Smith,  1  Wash.  296;  mer  v.  Bank,  90  Ind.  386. 
McMulliii    V.    Warner,    16    S.    ik    R.  ^  Ashton's   Appeal,  73   Pa.   St.  153; 

18;  Elliott  V.  Callace,  1  P.  «k  W.  24;  Scott  v.  Sadler,  M  Pa.  St.  211;   Kel- 

Jones   V.   llardesty,   10  G.   &  J.  404;  logg  v.  Ames,  41  N.  Y.  2o9;  Twitchell 

Sand  V.  La  Co.sle,  0  How.  471;  Decker  v.  ]\IcMurtrie,  77  Pa.  St.  383. 
V.    Eisenhauer,    1   Pa.    St.  470;    Sar  MVeaver  v.   Lynch,  25  Pa.  St.  449; 

geant  v.  Saryeant,  18  Vt.  371;  Foot  v.  Hill  v.  Puruell,  2  Md.  Ch.  137. 
Kctchum,  15  Vl.  258,  Bank  v.  Jerome,  ■■  Ashton's  Appeal,  73  Pa.  St.  163. 

18  Conn.  443;  Watson  v.  McLaren,  19         '  Weaver  v.  Lynch,  25  Pa.  St.  449. 
Wend.  557;  Petriev.  Feeter,  21  Wend.  •*  Twitchell   v.    McMurlrie,    77  Pa. 

175;  tiawkius  v.  Keal,  60  Miss.  256;  St.  383. 
Meggett  V.  Baum,  57  Miss.  22  ;  Plum-         •>  Elliott  v.  Callan,  1  P.  &  W.  25. 


Application  to  Mortgages.  1025 

a  new  contract  for  want  of  a  consideration,'  but  may  operate  as  a 
ratification  of  the  implied  agreement  of  the  assignor,  and  pre- 
clude the  debtor  from  making  a  set-off,  although  not,  as  it  would 
seem  from  showing  that  the  debt  is  not  due.* 

§  904:.  Where  a  mortgagor  at  the  same  time  that  he  executes  a 
mortgage  delivers  to  the  mortgagee  a  writing  certifying  that  he 
lias  no  defense  or  defalcation,  it  is  in  effect  an  agreement  that 
the  mortgagee  shall  negotiate  the  mortgage.  It  is  an  acknowledg- 
ment that  he  has  received  full  consideration.  It  is,  indeed,  most 
usual  to  execute  such  v/ritings  when  no  consideration  has  been 
received,  and  tbe  sole  object  of  the  mortgage  is  to  raise  money 
by  the  sale  of  it.  It  would  be  in  the  highest  degree  inequitable 
to  allow  the  mortgagor  to  set  up  that  there  was  fraud  in  obtain- 
ing the  mortgage,  or  a  misappropriation  by  the  mortgagee  of  the 
money  raised  by  the  sale.'  Thus  a  mortgagor  executed  "  a  cer- 
tificate of  no  defense."  It  distinctly  referred  to  tlie  bond  and 
mortiraee,  stating;  where  the  latter  was  recorded,  and  declared 
that  it,  together  with  the  bond  accompanying  the  same. ''  is  justly, 
fully  and  entirely  owing,  and  payable  according  to  the  terms  and 
conditions  thereof.  And  I  hereby  also  certify  to  any  person  or 
persons  who  may  desire  to  pur.cluise  the  same,  that  I  have  no 
drawback,  claim,  set-ofl:,  or  other  defenseof  any  kind  whatever,  to 
the  payment  of  any  part  of  said  mortgage,  either  principal,  inter- 
est or  commissions,  when  due,  and  payable  or  collectible,  by 
the  terms  and  conditions  therein  recited,  as  aforesaid."  On  the 
day  after  its  date  he  duly  acknowledged  this  certificate.  He 
placed  the  bond,  mortgage  and  certificate,  three  written  instru- 
ments, in  the  hands  of  G.  in  anticipation  of  needing  money, 
and  with  the  view  of  a  subsequent  negotiation  of  the  ?nort- 
gage.  H.,  to  whom  the  mortgage  was  executed  and  the 
bond  payable,  was  the  law  partner  of  G.  The  jury  found, 
that    subsequently    McC,     the    equitable    defendant    in    error 

'  Weever  v.  Lyncli,  25  Pa.  St.  449;      soa  v.    Nay,       Pa.    St.        ;   Gill  v. 
Payne  v.  Burnham,  63  N.  Y.  69.  Hutcbinsou,       Pa.  St.  ;  Burns  v. 

■■'King  V.    Fowler,   16    Mass.    897;      Aslitou,    1    Pa.     Leg.    Gaz.    R.    417; 
Thompson  v.  Emery,  27  N.  H.  209.  Twiteliell    v.    McMurtrie,  77   Pa.  St. 

*  Ashton's   Appeal,  73   Pa.  St.  153; 

Scott  V.  Sadler,  52   Pa.  St.  211;   Mc- 

Millen  v.    Wenner,    16   S.   &  R  18; 

Weaver  v.  Lynch,  25  St.  449;  Robert- 

VoL.  I.— 65 


383; 

Purser 

V. 

Anderson. 

4 

Ed. 

Ch. 

171; 

Payne 

V. 

Burnham, 

4 

T.  & 

c. 

678. 

1026  The   Law   of  Estoppel. 

jDurchased  tlio  mortgage  of  G.  in  good  faith  and  for  a  valu- 
able coDsideration,  and  took  ua  assignment  tliereof  from  II. 
It  matters  not  that  G.  may  have  sold  the  mortgage,  and  caused 
it  to  be  transferrcd  before  he  was  authorized  so  to  do  under 
the  private  instructions  given  him  by  the  mortgagor  ;  nor  that 
he  failed  to  account  to  the  kxtter  for  tlie  money  received  there- 
for. These  facts  are  insulficient  to  defeat  a  recovery  by  the 
assignee.  The  papers  which  the  mortgagor  executed  and  phiced 
in  the  hands  of  G.,  not  only  impliedly  authorized  a  sale  of  the 
bond  and  mortgage,  but  invited  purchasers  by  expressly  declaring 
that  he  had  "no  defense  of  any  kind  whatever."*  This  written 
declaration  fresh  from  the  mortgagor  having  been  shown  to  the 
assignee  when  he  was  about  to  purchase,  it  is  idle  to  say  he 
should  have  gone  to  the  mortgagor  personally  and  inquired  if 
there  was  any  defense.  This  certificate  was  addressed  "  to  all 
whom  it  may  concern."  It  could  not  have  been  more  effective 
and  conclusive  notice  to  one  about  to  purchase,  that  the  mort- 
gagor had  no  defense,  if  it  had  been  addressed  to  the  purchaser 
by  name.  The  main  purpose  of  the  execution  and  delivery  of 
such  a  certificate  is  to  dispense  with  personal  inquiry.  At  the 
same  time  it  gives  certainty  to  the  declaration  and  perpetuates 
tlie  evidence  thereof.  It  is  a  well-settled  rule  that  whore  one  of 
two  innocent  persons  must  suffer  from  the  tortious  act  of  a  third, 
he  who  gave  the  wrongdoer  the  means  of  perpetrating  the  wrong 
must  bear  the  consequences  of  the  act.  By  placing  the  papers  in 
the  hands  of  his  agents  and  attorney,  the  mortgagor  gave  him 
the  means  of  making  sale  of  the  mortgage,  and  of  obtaining  the 
money  of  the  assignee.  The  fraud  which  G.  may  thereby  have 
praciiced  on  the  mortgagor  cannot  operate  to  the  prejudice  of 
the  innocent  and  good  faith  purchaser. 

"  It  was  further  contended  that  the  alterations  made  in  the 
mortgage  and  in  the  certificate,  after  their  execution,  were  suffi- 
cient to  avoid  the  instruments.  In  determining  the  legal  effect 
of  the  alteration  it  is  important  to  consider  by  whom  the  altera- 
tion was  made,  and  the  materiality  of  the  alteration. 

"  1.  The  assignee  was  no  party  to  the  alterations.  He  was  in 
no  manner  privy  to  their  making.  They  were  made  by  G.  He 
was  either  the  agent  of  the  mortgagor,  intrusted  by  him  with  the 

'  Asbion's  Appeal,  73  Pa.  St.  153;  Gill  v.  Hutcbison,      Pa.  St. 


Application  to  Mortgages.  1027 

papers,  and  authorized  to  sell  the  mortgage,  so  that  the  act  of  the 
agent  became  the  act  of  his  principal ;  or  he  was  not  such  agent, 
and  not  interested  and  not  authorized  to  act  for  the  mortgagor, 
in  which  case  the  alteration  was  the  act  of  a  stranger.  Then, 
although  material,  the  alteration  will  not  affect  the  validity  of 
ths  instrument.' 

"  2.  The  alteration  in  the  mortgage  was  by  adding  a  clause 
waiving  the  benefit  of  a  specific  act  of  assembly  wliich  in  fact 
had  been  repealed  prior  to  the  execution  of  the  mortgage.  As 
then  the  act  mentioned  had  no  validity  whereby  the  mortgage 
could  be  affected,  an  attempt  to  waive  its  provisions  had  no  effect. 
It  was  simply  an  immaterial  act,  which  in  no  manner  prejudiced 
the  mortgagor.  As  therefore  the  legal  effect  of  the  mortgage 
remained  the  same,  the  alteration  did  not  avoid  it." 

"The  substance  of  the  alteration  in  the  certificate  is  a  recital 
that  the  mortgage  was  renewed  and  extended  another  year.  It 
was  the  declaration  of  a  fact  intended  for  the  benefit  of  the 
mortgagor.  It  was  made  by  G.  long  after  the  purchase  by  the 
assignee.  It  did  not  destroy  the  title  which  the  latter  had  previ- 
ously acquired. 

"  It  may  be  further  observed  that  after  this  alteration  appears 
to  have  been  made,  the  mortgagor  obtained  policies  of  insurance 
on  the  building  covered  by  the  mortgage,  in  which  was  inserted 
the  clause  "  loss,  if  any,  first  payable  to  McC,  mortgagee."  The 
plaintiff  thereby  clearly  evinced  knowledge,  and  implied  ratifica- 
tion of  the  assignment. 

§  905.  An  estoppel  does  not  arise  in  general,  unless  one  party 
is  guilty  of  a  deceit  which  misleads  the  other.'  But  it  is  well 
settled  that  one  who  actively  encourages  another  to  buy,  is  virtu- 
ally a  vendor,  and  cannot  make  the  purchaser's  knowledge  that 
tl'.c  title  is  defective,  a  pretext  for  impeaching  a  transaction 
which  he  has  impliedly  agreed  to  uphold." 

'  Greenl.  Ev.  §§  566,  568;  Lewis  v.  Gardiuier  v.  Sisk,  3  Pa.  St.  326;  Miller 

Payu,  8  Cowan,  71;  Jackson  v.  Maliu,  v.  Gilleland,  19  Pa.  St.  119;  Miller  v. 

15  Johns.  297;  Withers  v.  Atkinson,  1  Reed,  27  Pa.  St.  244;  Biukholder  v. 

Walls,   236;  Neff  v.  Horner,  63  Pa.  Lapp,  31  Pa.  St.  322. 

St.  327.  3  Shipley  v.   Abbott,  42  N.  Y.  443. 

"  Hunt    V.    Adams,    6    Mass.    519;  ^  Elliott  v.  Callan,  1   P.  &  W.  54; 

Ncvins  V.    Do  Grand,  15  Mass.  437;  McMullen  v.  Warner,  16  S.  &  R.  741. 


1028  The  Law  of  Estoppel 

A  mortgagor  who  unites  in  the  deed  by  whicli  a  mortgage  is 
transferred,  ur  gives  a  certiticate  under  his  seal  that  he  has  no 
defense,  is  estopped  from  denying  the  validity  of  the  security, 
thus  solemnly  affirmed,  whether  the  assignee  is  a  purchaser  or  a 
volunteer.  A  parol  declaration  to  the  same  cllect,  will  operate 
as  an  ecjuitable  estopi)el  in  favor  of  an  assignee  for  value,  but  not 
of  one  who  takes  the  mortgage  as  a  security  for  an  antecedent 
debt."  A  mortgage  which  has  been  transferred  for  a  valuable 
consideration  to  an  assignee,  vritli  a  sealed  certificate  from  the 
mortgagor  that  there  was  no  offset,  was  again  transferred  as 
secnrity  for  a  pre-existing  obligation,  ou  the  faith  of  the  same 
certificate,  and  it  was  held  that  the  mortgagor  was  not  thereby 
precluded  from  making  a  defense,  growing  out  of  a  sale  of  stock 
bv  the  first  assignee,  and  which  would  have  been  valid  against 
him,  although  the  case  might  have  been  different  if  the  second 
assignee  had  given  value  for  the  mortgage.  The  benefit  of  the 
certificate  is  not  conlined  to  the  immediate  assignee,  to  whom  or 
for  whose  security  it  was  made  ;  any  subsequent  assignee  claiming 
under  him  may  avail  himself  of  it.  "Were  it  otherwise  it  would 
have  the  effect  of  closing  the  market  for  the  sale  of  his  security 
to  the  first  assignee,  if  the  debtor  should  refuse  to  give  a  new 
declaration.  Upon  the  same  princijiie,  a  purchaser,  with  notice 
of  fraud  or  trust,  njay  claim  the  protection  of  his  vendor  without 
notice,  otherwise  the  latter  would  be  deprived  of  the  principal 
value  of  his  privilege.  But  to  avail  himself  of  such  an  estoppel 
upon  the  debtor,  the  assignee,  who  sets  it  up,  must  show  that 
either  he,  or  some  prior  assignee  from  whom  he  claims,  was  an 
assignee  for  value,  and  without  notice. 

§  906.  The  doctrine  that  payment  satisfies  a  mortgage  is  not 
applicable  where  a  mortgage  is  assigned  to  a  person  who  gives 
value  on  the  faith  of  the  certificate  of  the  mortgagor  that  the 
full  amount  is  due  and  that  there  is  no  offset."  Such  an 
acknowledgment  estops  tlu?  mortgagor  from  alleging  that  he  has 
paid  the  debt,^  and   this  conclusion  extends  to  every   one  wlio 

>  Eitel  V.  Bracken,  38  N.  Y.  Superior  McMurtrie,  77  Pa.  St.  383. 
Ct.  7;  Ashf oil's  App.  73  Pa.  St.  153;  -  Kellogg  v.    Ames,  41    N.  Y.  259; 

Scott  V.  Sadler,  52  Pa.  St.  211;  Kellogg  Purser  v.  Anderson,  4  Ed.  Cb.  171. 
v.  Ames,  41  N.  Y.  259;  Twitchell  v.         ^  gcott  v.  Sadler,  52  Pa.  St.  211. 


Application  to  Moktgages.  1029 

has  rlerived  title  from  liim  during  the  intorvah  ft  will  not. 
affect  the  rights  of  sncli  party  l^y  placing  an  intervening  grant 
or  incumbrance  on  the  record  unless  such  purchaser  or  assignee 
had  actual  or  such  constructive  notice  as  made  it  his  duty  to 
investigate  the  matter  before  he  paid  his  money.'  The  execu- 
tion of  a  mortgage  without  any  consider  ition,  for  the  purpose 
of  having  such  instrument  disposed  of  to  obtain  money  for  the 
use  of  mortgagor  or  mortgagee  estops  him  fro'.n  setting  up  the 
want  of  value  as  a  defense  against  a  hona  Jide  assignee  for 
value,^  and  this  estoppel  binds  all  claiming  under  him  subse- 
quently as  creditors  or  purchasers. 

If  a  mortgage  which  has  been  paid  but  appears  unsatisfied  of 
record,  is  assigned  to  one  who  gives  value  on  the  faith  of  the  cer- 
tificate by  the  mortgagor  that  he  has  no  defense,  and  the  mort- 
gaged premises  are  subsequently  sold  to  a  third  person,  the  law 
and  equity  are  both  with  the  assignee,  and  such  an  assignee  has 
priority  of  lien  over  a  judgment  creditor  who  obtains  judgment 
after  the  execution  of  the  mortgage,  but  befoie  that  of  the 
certificate. 

When  a  bond  and  mortgage,  made  without  actual  consideration 
as  between  the  parties  thereto,  has  been  assigned  to  a  third  party, 
although  the  evidence  does  not  satisfactorily  show  that  it  was. 
executed  with  a  pre-existing  design  or  consent  on  the  part  of  the 
maker  that  it  should  be  so  assigned,  yet  if  the  maker  by  words  or 
acts,  afterwards  assents  to  such  assignment  and  ratifies  it,  the 
bond  and  mortgage  are  thereafter  unassailable  in  the  hands  of  the 
assignee.^ 

§  907.  In  New  York ;  the  doctrine  laid  down  is  not  as  generally 
applied,  as  in  other  states.  This  is  based  upon  the  somewhat  local 
practice  or  custom  in  the  form  and  execution  of  the  instruments. 
The  mortgages  and  bonds  in  general  use  in  that  state  are  trans- 
ferable only  by  assignment.  The  bond  is  executed  with  as  much 
formality  as  the  mortgage  and  is  not  accredited  with  the  same 
character  of  negotiability  which  so  generally  prevails  with  mort- 
gages made   to  .secure   promissory   notes  and  coupon   bonds  in 

'  Mullison's  Appeal,  68  Pa.  St.  311;      Siio;  Irwin  v.  Tabb,  17  S.  &  R.  419. 

Graves  v.  liodgers,  5U  N.  H.  452.  ^  Sweeney  v.  WilliMms,  H6  .N.  J.  Eq 

*  Bloomer  v.    Henderson,   8  Mich.      627;  Robertson  v.  Hay,       Pa.  St. 


1030  The  Law  of  Estoppel. 

general  use  in  a  large  portion  of  this  country.  The  doctrine  in 
that  state  is,  that  an  assignee  of  a  mortgagee  takes  not  only  subject 
to  any  latent  equities  that  exist  in  favor  of  the  mortgagor,  but 
also  subject  to  like  equities  in  favor  of  third  persons.  And  a 
recorded  mortgage  given  without  any  consideration  as  means  for 
obtaining  money  for  the  mortgagor,  is  of  no  effect  in  the  hands 
of  a  mortgagee  ;  though  it  may  acquire  validity  by  an  assignment 
for  valuable  consideration,  it  will  not  cut  off  any  equities  or  rights 
created,  or  after  the  execution  of  such  instrument  and  prior  to  such 
transfer,  that  the  transfer  has  no  retroactive  operation,  and  inter- 
vening rights  thus  acquired  can  not  be  affected  by  any  acts  or 
representations  of  the  mortgagor.*  While  the  principles  adopted 
in  New  York  are  in  accord  with  those  cases  %vhicli  establish  the 
doctrine  that  priority  of  lien  depends  upon  the  time  the  considera- 
tion passes,  or  the  liability  is  incurred,  and  not  on  the  date  of  the 
instrument.  It  is  open  to  serious  objection  that  if  a  purchaser  can 
not  rely  upon  tlie  statement  of  the  mortgagor  that  there  is  no 
defense  or  offset,  the  transfer  and  purchase  of  this  class  of 
securities  would  be  fraught  with  such  dangers  which  no, prudent 
man  would  willingly  encounter.^  Such  a  result  would  be  injurious 
to  both  the  mortgagor  and  mortgagee,  by  compelling  him  to 
enforce  an  obligation  which  can  not  be  disposed  of  without  loss. 
It  is  said  that  such  certilicates  that  a  mortgage  is  valid,  and  that 
the  mortgagor  has  no  defense  thereto,  does  not  estop  him  from 
setting  up  fraud  in  the  transaction  which  induced  the  execution 
of  the  mortgage,  provided  the  certificate  was  obtained  by  fraud, 
the  mortgage  and  certificate  being  both  tainted  by  fraud,  and  not 
heing  negotiahle  instruments,  are  voidable  for  fraud  in  whose 
hands  soever  they  may  be.* 

§  908.  It  is  only  where  the  owner  of  a  non-negotiable  chose 
in  action,  by  his  own  affirmative  act  has  conferred  the  apparent 
title  and  absolute  ownership  upon  anotlier,  upon  the  faith  of 
which  the  chose  in  action  has  been  purchased  for  value,  that  he 
is  estopped  from  asserting  his  real  title.* 


'  Schaeffer  v.    Reilly.  50  N.  Y.  61;  ^  Mathews  v.  Wallwyn,  4  Ves.  128. 

Berdanv.  Sedgwick,   44  N.    Y.   626;  » Wilcox  v.  Howell,   44  N.  Y.  398. 

Trimm  v.  Marsh,  54  N.  Y.  599;  Free-  *  Davis  v.  Beckstein,  69  Nf  Y.  440; 

man  v.  Auld,  44  N.  Y.  59.          *  S.   C,    25    Am.   R.   218;    Mosely  v. 


Application  to  Mortgages.  10P>] 

8  909.  Where  on  the  assio;nmeut  of  a  morto^age  tlie  raort- 
gagor  gives  a  written  certificate  that  the  mortgage  is  a  valid  lien 
upon  the  premises,  and  that  it  is  given  for  part  of  the  purchase 
money,  and  that  there  then  existed  no  legal  or  equitable  defense 
thereto,  the  mortgagor  is  estopped  in  equity  by  his  own  repre- 
sentations from  setting  up  the  defense  of  usury  on  the  foreclos- 
ure of  the  mortgage.'  Where  a  party  negotiates  with  the  agent 
of  another  for  a  loan,  and  a  part  of  the  money  is  only  paid,  and 
delivers  a  bond  and  mortgage  for  the  full  amount  of  the  loan, 
and  afterwards  in  a  settlement  by  the  mortgagee  with  the  princi- 
pal accepts  the  mortgage  and  bond  in  full  settlement  of  his 
account  for  the  face  of  the  mortgage,  and  allowed  that  the  money 
had  been  advanced  to  him,  he  is  estopped  from  denying  that  he 
received  the  whole  amount  of  the  money,  or  from  making  any 
claim  against  the  mortgagee  on  the  foreclosure  of  the  mortgage.* 
Where  the  holder  of  a  note  and  mortgage,  which  are  alleged  by 
the  party  whose  name  appears  to  be  signed  to  the  instruments, 
to  be  forgeries,  or  to  have  been  obtained  by  fraud,  renders  an 
itemized  account  to  the  latter,  in  which  is  a  credit  in  his  favor^ 
for  the  proceeds  of  the  mortgage,  showing  a  balance  in  the  ac; 
count  in  favor  of  the  mortgagor,  and  the  latter  with  a  knowledge 
of  the  existence  of  the  note  and  mortgage  and  of  the  credit  in 
his  favor  in  the  account  for  the  proceeds  thereof,  sued  on  that 
acconiit  and  recovered  judgment,  it  was  such  an  appropriation 
of  the  proceeds  of  the  mortgage  as  to  be  a  full  approval  and 
adoption  of  it,  and  made  it  as  binding  on  the  mortgagor  as  if  it 
had  been  originally  executed  by  him,  or  had  been  fairly  obtained 
in  the  first  instance.'  In  a  suit  to  foreclose  a  mortgage,  the 
mortgagor  is  estopped  to  answer  that  the   notes  and   mortgage, 

Brown,  76  Ya.  419;  Taylor  v.  Bunce,  T.  &  C.  678;  Davis  v.  Beckstein,  69  N, 

Gil.  43;  Whitworth  v.  Adams,  5  Rand.  Y.  440;  S.  C,  25  Am.  R.  218;  Schenck 

333;  Bunnell  V.  Enders,  18Gratt.873;  v.  O'Neill,    28   Hun,  209;  Diercks  v. 

Grinmi  v.  CuUen,  20  Gratt.  439.  Green,  N.  J.  E.  40;  Kellogg  v.  Ames, 

'  Dunham  v.  Ardlipp,  94  N.  Y.  129;  41  N.  Y.  259;  Weil   v.  Fisher,  43   N. 

Riggsv.  Russell,  89   N.  Y.  608;  Bay-  Y.  Super.  32;   Smyth  v.  Ins.  Co.,  21 

lis  V.  Cockcroft,  81  N.    Y.    363;  Sav-  Hun,  341;  Smith  v.  Munroe,  84  N.  Y. 

ings  Inst.    v.    Wilmot,  94  N.  Y.  331;  354;  Howell  v.  Hale,  5  Lea,  405. 
Smith  V.  Cross,  90  N.    Y.    549;  Gris-         ^  Kjrpatrick    v.    Winans,  16  N.J. 

sler  V.  Powers,  81  N.  Y.  57;  S.  C,  37  E.  407;  Livings  v.  Wiler,  33  111.  387. 
Am.   R.   475;   Payne  v.  Burnham,  4         »  Livings  v.  Wiler,  33  111.  387. 


1032  The  Law  of  Estoppel. 

tliontrli  runniiifr  to  the  plaintifT,  were,  in  fact,  the  property  of  a 
ijiercaiitik!  linn  of  which  the  plaintiff  was  a  partner,  having  been 
given  for  gooils  pnrcliased  of  tlie  firm,  and  that  the  partners  had 
made  no  assignment  to  the  plaintiff.' 

§  910.  In  a  suit  against  a  mortgagor  for  the  land  mortgaged, 
he  is  estopped  to  deny  that  he  liad  title  when  he  mortgaged,  or 
to  set  up  title  in  a  stranger.^  But  wliere  a  mortgage  refers  to  a 
note,  the  mortgagee  is  not  estopped  to  deny  the  existence  of  sucli 
note.'  A  mortgagor  may,  in  the  absence  of  covenants  for  title, 
abandon  the  premises  to  the  mortgagee,  or  suffer  him  to  take 
possession  and  then  re-enter  under  the  paramount  title  derived 
from  a  third  person.''  The  maker  of  a  mortgage  for  part  of  the 
purchase  money,  is  estopped  by  such  representations  from  setting 
up  failure  of  consideration  or  defect  of  title  as  a  defense  thereto.' 
A  party  who  lias  effected  a  sale  of  his  land,  subject  to  a  mort- 
gage given  by  a  foriner  ownei",  by  representing  that  such  mort- 
gage is  a  sul)sisting  lien  for  only  two  of  the  three  notes 
secured  thereby,  is  estopped  from  afterward  claiming  that  it  is 
also  a  lien  for  the  third  note,  which  ho  had  in  his  own  possession 
at  the  time  of  the  fale."  A  mortgagee  who  has  made  a  verbal 
agreement  to  discharge  the  mortgage  upon  pa^^ment  of  a  part  of 
the  money  due.  and  ihns  induced  a  party  to  purchase  the  mort- 
gaged jM'cmises,  may  be  estopped  thereby  from  foreclosing  his 
mortgage;  but  such  agreement  will  not  estop  him  from  denying 
that  the  mortgage  debt  has  been  fnlly  paid,  in  an  action    against 

'  Frcncli  v.  Blanchara.  16  lud.  143.  erts  v.  Oliver.  46  Ga.  547;  Conklin  v. 

'  Wilkinson  V.  Scott,  17   Mass.  249;  Smith,  7  Ind.  107;  Doiii^las   v.  Scott, 

Small  V.  Proctor,  15  Mass.  495;  Bar-  5  Ohio,  194;  Brown  v.  Coombs,  29  N. 

kcr  V.  Harris,  15  Wend.  615;  Rcclman  ,T.  36;  City  Council   v.    Caulfield,   19 

V.  Bellamy.  4  Cal.   247;  Den  v.  Van  S.  C.  201.' 

Ness,  10  N.  ,T.  102:  Cram    v.    Baiky,  ^  pai-kg^    y    Parker,  17  Mass.  370: 

10  Gray,    87;  Findlay   v.   Kettleman,  Boone    v.    Armstrong,    87    Ind.    68; 

14  Iowa,  173;  Cross   v.    Robinson,  21  Thompson   v.    Justice,  88   N.  C.  269; 

Conn.    379;       Addi.son    v.    Crow,    5  Goodwin    v.   Keney,   49    Conn.  282; 

Dana,    271;    Reed  v.    Sbcpley,  0  Vt.  Jones  v.  Reese,  65  Ala.  134;  Campbell 

602,  Wiles  V.  Nelson,  26  Vt.  13;  Clark  v.    Trunnell,  67   Ga.   518;    Strong  v, 

V.  .^IcCiure,    10  Gratt.   305;  Green  v.  Waddell,  56  Ala.  471. 

Munson,  9  Vt.   37;  Osborn  v.  Timis,  4  Gillian  v.  Moore,  1  Busb.  95. 

25  N.  J.  L.633;  Doe  v.  Clifton,    4   A.  '  Man  v.  Howland,  20  Wis.  282. 

&  E.  809;  Doe  v.  Vickers,  4  A.    &  E.  «  liriggs  v.  Seymour,   17   Wis.   255; 

782;  Jarvis  v.  Deane,  56  >Ie.  9;  Rob-  Pitts  v.  Gilliam,  1  Head,  549. 


Application  to  Mortgages.  1033 

him  for  refusing  to  discharge  the  mortgage.'  If  the  maker  of  a 
note  and  mortgage  inforin  a  party  about  to  purchase  them,  after 
due,  that  the  amount  appeai'ing  by  the  instruments  and  indorse- 
ments thereon  to  be  due,  is  due  and  will  be  paid,  and  the  hatter, 
relying  upon  such  statements,  purchases  the  note  and  mortgage 
for  a  valuable  consideration,  without  notice  of  any  usury  therein, 
such  maker  is  estopped  from  setting  up  the  usury  to  defeat  the 
mortgage.''  Thus,  where  A.  agreed  to  purchase  a  note  and  mort- 
gage past  due,  if,  on  the  inquiry  of  the  maker,  they  siiould  be 
found  free  from  objection,  and  having  been  subsequently  in- 
formed by  the  maker  that  the  sum  which  appeared  by  the  face 
of  the  instrument,  and  the  indorsements  tliereon,  to  be  due,  was 
in  fact  due,  and  that  he  would  pay  it,  purchased  the  same  without 
the  knowledge  of  any  usury  therein,  and  paid  a  full  and  valuable 
consideration  therefor;  the  maker  was  estopped  from  claiuiing 
that  moneys  previously  paid  by  him,  sufficient  to  extinguish  the 
principal,  which  had  been  unlawfully  applied,  by  the  mortgagee, 
upon  usurious  interest,  and  from  denying,  for  that  reason,  that 
such  sum  was  in  fact  due.  He  is  so  estopped,  not  only  as  against 
the  person  to  whom  such  statements  are  made,  but  as  against  his 
assignee,"  and  cannot  avail  himself  of  any  defense  which  he  had 
against  the  mortgagee. 

§  911.  The  same  principles  of  estoppel  in  pais  apply  in  the 
case  of  inortgag  us,  and  the  rule  that  no  man  shall  take  advan- 

'  Stone  X.  Lannon,  G  Wis.  497.  v.    .Jerome,   IS   Couu.  443;  Graves  v. 

••'Gill   V.    Rice,  13  Wis.  549;  Mason  Rogers,  59  N.   H.  452. 
V.Anthony,  3   Keyes,  609;  Ehvell  v.  -  Gary  v.  Wheeler,  14  Wis.281  ;Tobey 

Chamberlain,  4  Bosw.  .320;  Ferguson  v.    Chipman,  18  Allen,  123;    Ilonorc 

V.  Hamilton,  35  Barb.  427;  Holmes  v.  v.   Doughty,    4  Bibb,    280;    Land  v. 

Williams,  10  Paige,  326;    L'Ameroux  Lacoste,  6  Miss.  471;  Harner  v.  Jobn- 

V.  Vischer,   2   IST.    Y.   278;  Payne   v.  stou,    1    S.    &   M.    Gb.  563;  Ayres  v 

Buruham,  62  N.  Y.  69;  Weyhv.  Boy-  Mitchell,    11     Miss.    683;   Adams  v. 

Ian,  85  N.  Y.   394;  S.  C,  39   Am.  R.  Biancan,    6   Robt.    334;  Ingrabam  v. 

669;  Gary  v.   Wheeler.  14   Wis.  281;  Adem,    3    Humph.    51;    Sargeant   v. 

Lesley     v.    .fohnsqn,    41    Barb.    359;  Sargeant,    18   Vt.  371;  Farrington  v. 

Marr    v.     Uowlaud,    20     Wis.     282;  Bank,  24  Barb.  554;  ^V'eyh  v.  Boylan, 

Briggsv.  Seymour.  17  Wis.  255;  Smith  85   N.  Y.  394;  S.  G.,  39  Am.  R.  669; 

V.  Newton,  38  m.  230;  Watson  V.  Mc-  Weaver   v.    Lynch,    25   Pa.    St.   449: 

Laren,  19  Weml.  557;  Foster  v.  New-  Davidson  v.  Franklin,  1  B.  «&  A.  142; 

land,  21  Wend.  94;  Davison  v.  Frank-  Hill  v.Purnell,  1   Md.  Gh.  137;  Bank 

lin,  1   B.  &  A.  142  ;^JIiddletown  Bank  v.  Jerome,  18  Conn.  443. 


1034  The  Law  of  Estoppel. 

tage  of  his  onm  wrong,  is  one  of  universal  application.  Thus, 
wliere  the  owner  of  personal  property  allowed  it  to  be  niortgatred 
in  his  presence  to  one  ignorant  of  his  title,  he  was  estopped  from 
settins:  up  his  ownership  to  the  property  against  the  mortgagee.' 
Upon  the  same  principle,  if  a  person  having  an  incumbrance  on 
an  estate,  deny  the  fact  upon  an  inquiry  being  made  by  a  person 
about  to  purchase  it,  equity  will  relieve  against  the  incumbrance. 
So,  likewise,  where,  upon  a  treaty  for  a  mortgage  of  an  estate  a 
person  who  was  entitled  to  be  reco^qjed  out  of  the  estate,  in  case 
a  certain  incumbrance  was  levied  out  of  his  own  estate,  was  in 
communication  with  the  mortgagee,  to  whom  he  was  referred  as 
a  person  to  give  information  upon  the  subject  of  the  transaction, 
but  he  gave  the  mortgagee  no  information  of  his  equitable  claim  ; 
it  was  held  by  Lord  Chancellor  Sugden  that  he  could  not  after- 
wards set  up  his  claim  against  the  mortgagee.''  A  mortgagee 
who  acts  as  an  adviser  or  witness  in  the  sale  of  land,  with  full 
knowledge  that  the  purchaser  is  buying  with  the  impression  that 
the  mortgage  is  satisfied,  will  be  estopped  by  such  act  from  en- 
forcing his  mortgage.'  So,  an  attorney  who  has  advised  his  client 
to  invest  in  a  title  that  proves  to  be  bad,  and  has  liimself  after- 
wards, as  against  the  client  bought  up  the  better  title,  will  not 
be  allowed  to  set  up  his  ignorance  or  negligence,  against  his  cli- 
ent's claim.'  Where  the  plaintiff  purchased  a  mortgage  at  the 
solicitation  of  the  mortgagors,  and  I'elying  on  their  representa- 
tions that  a  certain  sum  was  due  thereon,  they  are  estopped  from 
denying  the  truth  of  such  representations,  in  an  action  brought 
by  him  to  foreclose  the  mortgage. 

§  912.  An  execution  creditor,  who,  at  the  sale  of  his  debtor's 
chattel  upon  a  previous  execution,  purchased  it  subject  to  a  mort- 
gage, which  the  officer  making  the  sale  assumed  to  be  a  valid 
lien,  prior  to  both  executions,  is  estopped  from  disputing  the 
validity  of  such   mortgage.'     A  party  to    a  foreclosure   suit  is 

'  Thompsoa  v.    Sanborn,  11  N.  H.  Croucbcr,  1  Dc  G.  F.  &  J.  518:  Prira- 

201;    Bird    v.    Benton,    2    Dev.    79;  rose,  in  re,  a  Jur.  K  S.  899;  Mahoney 

Governor  v.    Freeman.   4  Dev.    492;  v.  Iloran,  58  Barb.  29. 

Hibhard    v.    Stewart,    1    Hilt.    207  ;  ^  Burrowes  v.  Locke,  10  Ves.  470. 

Howell  v.  Hale,  5  Lea,  405.  *  Gibbons  v.  Hoag,  95  111.  45. 

'  Boyd  v.    Bolton,    1   J.  &  L.  730;  »  Lesley  v.   Johnson,  41  Barb.  359 

Piatt  v.  Squier.  12  Met.  494;  Slim  v.  Brown  v.  Snell,  46  Me.  490. 


Application  to  Mortgages.  1035 

estopped,  by  the  judgment  therein,  from  disputing  the  title  of  a 
purchaser  at  the  foreclosure  sale.'  So  a  Jjarty  making  a  parol 
contract  of  sale,  and  who  takes  a  mortgage  from  the  purchaser 
for  the  purchase  money,  is  estopped  to  set  up  the  statute  of 
frauds.*  The  assent  of  a  mortgagor  to  the  transfer  of  the  mort- 
gage, as  an  indemnity  to  a  third  person  for  uniting  with  him  as 
surety  in  a  note  to  the  mortgagee,  estops  him  from  saying  that 
the  note  was  given  for  a  subsequent  debt  or  advance  not  covered 
by  the  mortgage,  and  that  the  surety  was,  consequently,  not 
liable  on  the  note.'  Where  a  chattel  mortgage  is  given  Avithout 
a  consideration,  for  the  purpose  of  being  sold  as  a  means  of 
obtaining  money  for  himself  or  the  mortgagee,  the  mortgagor 
cannot  set  up  the  want  of  value  as  a  defense  against  a  hona  fide 
purchaser.*  A  mortgage  of  personal  property,  not  yet  acquired 
by  the  mortgagor,  will  take  effect  as  against  him  and  others,  not 
having  acquired  precedent  rights,  on  the  title  becoming  vested  in 
the  mortgagor,  and  possession  taken  by  the  mortgagee.'  Where 
one  accepts  a  transfer  of  personal  property,  but  expressly  subject 
to  a  mortgage  thereon  which  is  held  by  another,  he  is  estopped 
from  claiming  a  prior  lien  upon  the  property,  on  account  of  a 
previous  mortgage  held  by  him,  but  which  was  not  properly 
renewed.^  Nor  can  he  set  up,  as  a  defense  to  an  action  by  the 
subsequent  mortgagee,  his  prior  lien,  wliere  he  has  voluntarily 
become  the  bailee  of  the  mortgagee,  and  accepted  possession  of 
tlie  property  as  belonging  to  him,  and  having  promised  to  return 
it  to  him  on  demand.' 

§  913.  Where  one  buys  personal  property  subject  to  mort- 
gage, nominally  from  the  mortgagor  but  really  from  mortgagee, 
or  with  his  concurrence  and  by  his  request,  the  latter  will  not  be 
allowed  to  set  up  a  title  under  his  mortgage.  In  one  case,*  wliere 
property  was  conveyed,  and  a  mortgage  given  back  to  secure  the 
purchase  money,  afterwards,  the  mortgagor  being  unable  to  pay 

'  Horton  v.    Davis,  26  N.  Y.  495;         »  Wright  v.    Boiling,    27  Ala.  259; 

Lyoa  V.  Lyon,  07  N.  Y.  250;  O'Neal  See  Herman  on  Chattel  Mortgages  for 

V.  Duncan,  4  McCord,  246.  additional  authorities. 

«  Kelly  V.  Stanberry,  13 Ohio,  108.  «  Walker  v.  Vaughn,  33  Coiin.  .577. 

"  White  V.  Evans,  47  Barb.  179.  ■>  Jones  v.  Howell.  3  Rob.  438;  Lock- 

*  Judge    V.    Vogel,   38    Mich.    569;  wood  v.  Slevin,  26  Ind.  324. 
Bloomer  v.   Henderson,  8  Mich.  395.         « Irving  v.  Neufville,  2  Des.  174. 


10:}6  The  Law  of  Estoppel. 

it,  application  was  made  to  a  tliird  person,  with  the  knowledge 
and  by  the  desire  of  the  mortgagee,  who  himself  wrote  to  the 
party  upon  the  subject  to  buy  a  part  of  the  property  at  an 
advanced  price.  He  accordingly  bought  it  and  paid  the  price, 
but  the  receipts  were  expressed  to  be  on  account  of  the  mortgage 
debt.  Before  the  purchase  was  completed,  the  mortgagor  ex- 
pressed to  the  purchaser  his  perfect  confidence  in  his  fulfilling 
his  engagements.  Most  of  the  property  was  delivered  to  the 
purchaser,  with  the  cousent  of  the  mortgagee,  and  a  part  of  it  by 
the  mortgagee  himself.  The  part  remaining  in  the  mortgagee's 
hands  having  been  sold  at  a  reduced  price,  and  the  mortgage 
debt  therefor  unsatisfied,  the  mortgagee  claimed  to  hold  the  por- 
tion sold,  and  the  purchaser  filed  a  bill  for  a  perpetual  injunction 
against  the  claim.  Held^  the  mortgagee  was  a  party  to  the  con- 
tract of  purchase,  and  the  property  sold  was  discharged  from  the 
mortgage.  But  where  a  mortgagor,  having  sold  the  property, 
the  mortgagee,  upon  being  informed  of  it,  said  he  cared  nothing 
about  the  property  and  did  not  want  it,  he  might  still  assert  his 
title  under  the  mortgage.'  Parker,  C.  J.  says  he  may  thus  claim  : 
"There  being  no  evidence  of  any  consideration  for  it  as  a  release, 
and  the  sale  not  having  been  made  on  the  credit  of  it,  if  that 
might  make  any  difference.  It  was  a  mere  loose  declaration, 
which  cannot  operate  as  an  estoppel.  It  might  have  a  tendency 
to  show  that  the  mortgage  had  been  settled,  and  be  used  with 
other  evidence  to  show  the  fact  if  alleged." 

§  91-t.  If  a  person  having  an  incumbrance  on  an  estate,  denies 
the  fact  upon  inquiry  being  made  by  a  person  about  to  purchase 
it,  equity  will  relieve  against  the  incumbrance."  The  same  rule 
applies  where  a  mortgagee  represents  to  a  third  person  that  the 
debt  for  which  the  mortgage  is  given  is  satisfied,  or  that  there  is 
nothing  due  on  the  mortgiige  ;  and  such  third  person  acts  on  such 
statement,  and  releases  an  attachment  on  the  mortgagors  goods  by 
reason  thereof,  and  takes  a  mortgage  on  the  land  to  secure  the 
debt,  which  had  been  previously  secured  by  the  attachment ;  the 
last  mortgage  as  between  the  two  mortgagees  will  take  priority  of 

'  Steele  v.  Adams.  21  Ala.  534.  Locke,  10  Ves.  470;  Slim  v.  Croucber, 

"IbbotsoD  V.  Rhodes.  2  Vein.  554;  2   Giff.  37;   Ward,  in   re,  31   Beav.  7; 

Amy's  Case,  2  Ch.  Ca.  128;  Hicksdn  Riley  v.  Quigley,  50  111.  304. 

V.  Anilward,  3  Moll.  1;   Burrows  v. 


Application  to  Mortgages.  1037 

the  first,  although  the  first  is  on  record  when  the  representation 
was  made ;  it  is  immaterial  whether  the  purchaser  examines  the 
records  or  not,  he  may  rely  upon  the  statement  made  by  the 
mortgagee/  This  rule  is  inapplicable  where  the  statement  is 
made  by  the  mortgagor,  and  the  party  relying  on  his  statement 
can  take  no  benefit  from  it.*  So,  where  a  mortgagee  knowing  the 
desire  of  the  mortgagor  to  pay  off  the  mortgage,  denies  having 
possession  of  it,  for  the  purpose  of  preventing  its  discharge,  and 
by  misleading  the  party  prevents  such  discharge,  he  is  estopped 
from  relying  on  the  mortgage  as  a  defense  to  an  action  for  the 
possession  of  the  premises.^  But  where  the  grantee  instead  of 
referring  to  an  unrecorded  instrument,  himself  states  what  the 
contents  are,  the  party  making  such  inquiry  may  reasonably  trust 
to  the  representation  of  it,  in  the  statement  made  as  being  the 
correct  statement  of  its  contents.* 

§  915.  Where  a  person  has  an  incumbrance  or  security  upon 
an  estate  and  suffers  the  owner  to  procure  additional  money  upon 
the  estate  by  way  of  lien  or  mortgage,  concealing  his  prior  lien  or 
security,  in  such  a  case  he  will  be  postponed  to  the  second  incum- 
brance, as  it  would  be  unequitable  to  allow  him  to  profit  by  his 
own  wrong  in  concealing  his  clai,m,  and  thus  lending  encourage- 
ment to  the  new  loan.^     Thus,  if  a  prior  mortgagee,  who  knows 

»  Piatt  V.  Squire,  12  Met.  494:Purdy  Biittelly,  2  Lev.  152;  Anon.,  1  Freem. 

V.  Huntington,  46  Barb.  389;  Bank  v.  310;  Pear.son  v.  Morgan,  2  Brock.  385; 

V.  B;uik,  53  Vt.  82;  Evans  v.  Forstall,  Thomp.sou  v.  Sanborn,  11  N.  H.  201; 

58  Mi.ss.  30;  Riley  v.  Qiiigley,  50  111.  Plumb  v.  Fluitt,  2  Anst.  432;  Lee  v. 

304;  Williams  V.  Wells,  03  Iowa,  740;  Monroe,    7   Crauch,    368;    Barrett    v. 

Dodge  V.  Pope,  93  Id.  480.  Wells,   Pre.    Ch.    131;    Cbapmau    v. 

2  Pratt  V.  Pratt,  96  111.  184.  Hamilton,    19  Ala.    121;    Cbester    v. 

^  Garrison  v.  Garrison,  29  N.  J.  L.  Greer,  5  Humph.  26 ;  Piatt  v.  Squire, 

153.  12  Met.  294;  Cook  v.  Finkler,  9  Mich. 

*  Cox  V.   Coventon,   31  Beav.   378;  131;   Rabun   v.    Rabun,   61   Ga.    647; 

Grosvenar  v.  Green.  28  L.  J.  Cb.  173.  McBane    v.    Wilson,    8    F.    R.    734; 

^  Draper  v.    Borlace,    2  Vern.  370;  Alexander    v.    Ellison,    79    Ky.    148; 

Clare  V.  Earl,  2  Vern.  150;  Moratta  v.  Feltz  v.  Walker,  49  Conn.  93;   Hen- 

Murgatroyd,  1  P.  Wms.  393  ;   Berris-  drix  v.  Kelly,  49  Conn.  93;   Mayor  v. 

ford  V.   ililward.  2  Atk.  49;  Beckett  Eihardt,  88  111.  452;  Redman  v.  Gra- 

v.  Cordley,  1  Bro.  Ch.  353;  Cholmon-  liam,  80  K  C.  231;  Wylie's  Appeal, 

donly  V.  Clinton,  2  Meriv.  362;  Evans  90  Pa.  St.  210;  Green's  Appeal,  97  Pa. 

V.   Bickuell,   6  Ves.    173;  Lasalle  v.  St.  342;  Steed  v.  Whittaker,  Barn.  C. 

Barnett,    1   Blackf.    150;   Heriing    v.  C.  220. 
Feirers,  Gilb.  Eq.  Cas.  85;  Edlin  v. 


1038  The  Law  of  Estoppel. 

tliat  another  person  is  about  to  lend  money  on  the  mortgaged 
property,  should  deny  that  he  had  a  mortgage  or  should  assert 
that  it  was  satisfied,  his  mortgage  will  be  postponed  to  that  of  the 
second  mortgagee,  who  loaned  his  money  on  the  faith  of  the 
representations  so  made.'  So,  where  a  mortgagee  places  his  mort- 
gage in  the  debtors  hands,  so  as  to  enable  him  to  represent  it  as 
extinguished,  and  thereby  gain  further  credit  upon  a  mortgage  of 
the  same  property,  the  first  loan  will  be  postponed  to  the  second 
one." 

§  916.  A  mortgagee  promised,  by  writing,  not  under  seal,  to 
extend  the  time  of  payment,  and  a  third  person,  in  consequence, 
bought  the  estate  from  the  mortgagor.  The  mortgagee  being 
bound  by  his  promise,  could  not  maintain  scire  facias  upon  the 
mortgage  until  the  time  of  such  extension  had  expired.'  The 
judge,  in  delivering  the  opinion  of  the  court,  said:  "Whether 
such  a  paper  given  to  the  debtor  would  have  been  binding,  is  not 
the  question  ;  though  if  a  mortgagee  gives  a  writing  to  his  mort- 
gagor that  he  will  accept  a  debt  presentlj'^  due,  if  paid  in  install- 
ments, at  specified  times,  and  receives*  one  or  more  of  them  as 
they  fall  due,  it  may,  in  some  instances,  be  a  great  fraud  to  after- 
wards proceed,  before  the  other  installments  fall  due  ;  and  I  am 
not  prepared  to  say  that  it  would,  under  all  circumstances,  be 
void.  Bnt  that  is  not  the  case.  It  is  not  fair,  nor  honest  to  make 
a  promise  which  induces  a  man,  a  stranger  to  the  party,  to  buy 
his  goods,  and  give  his  labor,  to  exchange  his  property,  for  an 
incumbered  property,  and  promise  not  to  press  the  incumbrance, 
and  then  say  :  I  make  nothing  by  the  indulgence  which  I  prom- 
ised you,  and  I  will  not  meet  my  promise.  True,  the  mortgage 
Avas  a  deed  under  seal,  and  this  not  under  seal  ;  but  it  was,  though 
informal,  enough  to  induce  him  to  exchange  for  that  land,  and 
pay  one-third  of  a  debt  which  he  w^as  not  liable  for,  and  never 
M-ould  have  been,  except  for  that  paper,  and,  in  equity,  it  was  as 
binding  as  if  more  formally  drawn  under  seal,  and  witnessed. 
xV  moj-tgagee  requested  the  holder  of  a  note  of  the  mortgagor,  in 
which  the  mortgagee  was  surety,  to  obtain  judgment  on  the  note, 

'  Lee    V.    lironroc,    7   Crancli.   366;  Morony  v.    O'Dea,    1  B.    &   B.    121; 

McLean  v.  Dow,  43  Wis.  610.  JNIoses  v.  Murgatroyd,  1  P.  Wms.  394. 

^  Ilenick  v.  Atwood,  2  D.  G.  &  J.  3  Hoffman  v.- Lee,  3  Watts,  352. 
21;   Moore   v.  Vail,  13  N.  J.  E.  295; 


Application  to  Mortgages.  1039 

and  levy  on  and  sell  the  mortgaged  premises ;  he  was  also  present 
at  the  sale,  and  asked  one  person  to  bid,  and  did  not  object  to  the 
sale.  He  was  estopped  to  assert  his  title  under  the  mortgage.*  A 
mortgage  was  without  consideration,  the  mortgagee  forclosed  by 
sale,  at  which  A.  purchased,  paying  a  small  amount  in  cash  and 
the  balance  by  note,  the  mortgagor  being  present ;  afterwards  a 
creditor  of  the  mortgagor  obtained  judgment  and  levied  on  the 
goods.  The  sale  passed  a  good  title  by  reason  of  the  acquiescence 
of  the  mortgagor,  notwithstanding  the  want  of  consideration,  and 
the  creditor  was  in  no  better  position  than  the  mortgagor,  unless 
he  could  show  that  the  whole  transaction  was  a  device  to  defraud 
the  creditors.* 

§  917.  If  parties  claiming  an  interest  in  land,  look  on  and  see 
it  conveyed,  or  take  part  in  the  transaction  without  complaint  or 
objection,  they  are  estopped  in  equity,  from  afterwards  setting 
up  a  title  against  the  grantees  and  those  holding  under  them. 
This  rule  rests  rather  on  the  tendency  of  such  conduct  to  mislead, 
than  on  any  deceit  actually  intended  or  actually  practiced  in  such 
case.'  The  rule  of  law  is  clear,  that  where  one  by  his  words  or 
conduct  willfully  causes  another  to  believe  the  existence  of  a  cer- 
tain state  of  things,  and  induces  him  to  act  on  that  belief,  so  as  to 
alter  his  own  previous  position,  the  former  is  concluded,  from 
averring  against  the  latter  a  different  state  of  things  as  existing 
at  the  same  time."  A  party  who  negligently  or  culpably  stands 
by  and  allows  another  to  contract  on  the  faith  and  understanding 
of  a  fact  which  he  can  contradict,  cannot  afterwards  dispute  the 
fact,  in  an  action  against  the  person  whom  he  has  himself  assisted 
in  deceiving.""     This  principle  is  applicable  to  mortgagees. 

§  918.  Where  a  devise  of  lands  to  children  of  the  testator  was 
made  with   a    provision   that  the   part  devised   to  one  of  them 

'  Morford  v.  Bliss,  12  B.  IMon.  255.  v.  Cannon,  4  New  Cas.  453;  Sheffield 

'  Allen  V.  Cowan,  23  N.  Y.  502.  v.  Woodcock,  7  M.  &  W.  574;  Clielt- 

^  Shepley  v.  Rauglcy,  1  AVood  &  M.  enham  v.  Danvil,  2  Q.  B.  281 ;  How- 

217.  ard  v.  Hudson,  2  E.  &  B.  1;  Foster  v. 

^  Pickard  v.   Sears.    6  Ad.  &  Ell.  Mentor,    3   S.   &   B.    48;    Gurney  v. 

474.  Evans.   3  H.   &  N.  122;   Cornish  v. 

5  Gregg  V.  Wells,  10  Ad.  &  Ell.  97;  Abington,  4  H.  &  N.  549;  Holroyd  v. 

Sandy   v.    Hodgson,  "lO   A.  ■&  E.  472;  Marshall,  2  De  G.  F.  &  G.  596;  Ger- 

Stroud  V.  Stroud,  7  M.  &  G.  417;  Cox  hardt  v.  Bates,  2  Q.  B.  476. 


1040  The  Law  of  Estoppel. 

should  be  subject  to  the  maintenance  of  Lis  widow  for  life;  the 
widow,  claiming  a  beneficial  interest  in  the  lands  devised,  under 
a  mortgage  made  to  the  testator  and  herself,  deceptively  acqui- 
esced in  the  provisions  of  the  will  for  several  years,  and  thereby 
gave  reason  for  confidence  on  the  part  of  hona  jide  purchasers 
from  the  children  that  sucli  provisions  were  to  be  final  and  not 
disturbed — LLeld^  although  such  purchasers  were  not  proved,  in 
fact,  to  have  acted  in  this  confidence,  she  was  estopped  to 
impeach  their  title.^  In  another  case,  the  demandant  gave  in 
evidence  a  quit-claim  deed  from  the  tenant  to  Daniel  Kimball, 
dated  December  23,  1818;  the  levy  of  two  executions  on  the  8tli 
of  November,  1827 ;  a  conveyance  from  the  execution  creditore 
to  the  demandant ;  a  deed  from  Daniel  to  Leggett  and  Hance, 
dated  November  27,  1828 ;  and  a  deed  from  them  to  the  demand- 
ant, dated  xVpril  25,  1832.  The  tenant  then  offered  a  bond  from 
Daniel  to  him,  dated  December  23,  1818,  conditioned  to  re-con- 
vey the  property  ;  a  mortgage  from  the  tenant  to  one  Peabody, 
dated  May  17,  1811,  to  secure  a  certain  sun)  ;  an  assignment  of 
it  by  Peabody  to  AVheelwright  and  Clark,  April  24,  1812;  an 
assignment  from  them  to  one  Buck,  of  Jane  2,  1827;  and  a  deed 
from  Puck,  i-eciting  a  judgment  on  the  mortgage  and  possession 
taken  under  it  in  1824,  to  the  tenant,  dated  June  2,  1827.  The 
levies  were  duly  recorded,  as  also  all  the  deeds,  all  of  which  cov- 
ered the  deu)anded  premises.  The  bond  to  re  convey  was  not 
recorded.  The  tenant  had  been  in  possession  thirty  years,  built 
a  house  on  the  land,  and  made  expensive  repairs,  both  before  and 
after  Puck's  deed  to  him.  Upon  tliese  facts  the  defendant  hav- 
ing been  defaulted,  the  default  was  taken  off,  and  a  new  trial 
ordered.  Upon  the  new  trial  a  verdict  was  rendered  for  the 
demandant.  It  appeared  that  after  the  tenant  had  paid  off  the 
mortgage,  and  taken  a  re-lease  of  the  premises,  having  conveyed 
to  Daniel  and  being  still  in  possession,  he  knowingly  suffered 
two  executions  to  be  levied  on  tilt  premises  as  Daniel's  without 
claiming  title  ;  that  he  pointed  out  the  bounds  at  the  time  of  the 
levy,  and  agreed  to  become  a  tenant  and  pay  rent.  He  continued 
the  tenancy  till  1829,  and  rendered  an  account  of  repairs  made 
by  him  to  the  plaintiff,  who  subsequently  himself  made  repairs 
and  put  in  another  tenant.     Xo  claim  was  made  under  the  mort- 

»  Ackla  V.  Ackla,  6  Pa.  St.  228. 


Application"  to  Mortgages.  1041 

gage,  till  after  the  plaintiff  had  purcliased  the  title.  The  mort- 
gage, under  these  circunistances,  was  declared  extinguished  ;  that 
it  could  be  kept  alive  only  by  the  equitable  principle  of  being 
most  for  the  mortgagee's  interest,  which  was  rebutted  by  a 
stronger  equity  on  the  part  of  the  demandant,  and  could  not  be 
applied  where  it  would  promote  a  fraudulent  purpose.' 

§  919.  One  having  a  mortgage  upon  the  property  of  his  son, 
encouraged  a  third  person  to  purchase  the  property,  promising  to 
abide  by  any  agreement  which  the  son  might  make  concerning 
the  mortgage.  The  son  delivered  the  mortgage  to  the  purchaser, 
but  it  was  re-dclivered  to  the  father  for  the  purpose  of  having  it 
discharged.  Held,  the  mortgage  could  not  be  enforced.'*  One 
co-tenant,  owning  one-eighth  of  the  land,  and  holding  a  mortgage 
on  the  other  seven-eighths,  joined  the  other  in  conveyance  of 
the  whole,  the  terms  being  as  follows: — "Do  hereby  give,  &c., 
that  is  to  say,  the  said,  &c.,  seven-eighths  parts,  and  the  said,  &c., 
one-eighth  part  of  the  following  piece,  &c.  And  we  do  covenant, 
&c.,  that  we  are  lawfully  seized,  &c. ;  that  they  are  free  of 
incumbrances  and  that  we  have  good  right  to  sell,  &c.,  in  the 
aforesaid  proportions."  The  mortgagee  did  not  disclose  his 
mortgage  to  the  purchaser.  Held,  an  action  coilld  not  be  main- 
tained upon  the  mortgage.'  Shepley,  J.  says  :— "Admitting  the 
covenants  to  be  several  and  not  joint,  the  effect  of  tiiis  transaction 
is,  the  demandant  knowingly  becomes  a  party  to  the  most  solemn 
assurance  made  by  his  mortgagor  under  his  hand  and  seal,  that 
the  seven-eighths  are  free  of  all  incumbrances,  and  that  he  has 
good  right  to  sell  and  convey  ihe  same.  And  he  does  this  while 
he  held  a  mortgage  covering  the  premises,  on  which  was  due 
more  than  double  the  amount  of  the  purchase  money,  without 
causing  any  exception  of  his  own  title  to  be  introduced.  He  is 
as  much  bound  by  the  declarations  of  his  mortgagor  as  if  they 
were  his  own.  It  w^ould  be  a  fraud  upon  the  purchaser  to  per- 
mit him  now  to  disturb  that  title.  It  would  be  no  legal  excuse 
if  done  through  ignorance  or  inattention,  for  it  is  more  just  that 
he  should  be  the  loser  under  such  circumstances  than  that  the 
innocent  and  faultless  purchaser  should."     Thus,  when  a  mort- 

'  Hatch  V.  Kimball,  16  Maine,  146.  ^  Duiiiaiu  v.  Alden,  20  Me.  228. 

*  Curtis  V.  Tripp,  1  Iowa,  318 
Vol.  I.— 66 


1042  The  Law  of  Estoppel. 

2;;igce  consents  to  the  sale  of  tlie  property,  or  permits  it  to  be 
levied  upon  without  asserting  his  claim,  he  is  estopped  from 
claiming  title  to  it  as  against  the  purchaser/  as  between  the 
morttjagee  and  the  purchaser  of  pi'operty  acquired  subsequently 
to  the  mortgage,  but  mentioned .  therein  as  being  conveyed 
thereby,  the  former,  by  attending  the  sale  upon  execution,  bid- 
diiiir,  and  omittiiW  to  ii:ive  the  bidders  notice  of  his  claim,  will  be 
estopped  from  claiming  a  right  to  specific  performance  of  the 
contract  to  give  a  mortgage. * 

§  920.  A.  executed  mortgage  deeds  of  the  same  land,  on  the 
same  day  to  13.,  and  C.  afterwards  assigned  his  interest  to  D. 
E.  having  attached  the  premises  as  the  property  of  C,  and 
recovered  judgment  against  him,  sent  an  agent  to  D.  who  had 
knowledge  of  such  judgment,  to  inquire  whether  there  was  any 
priority  in  the  deed  under  which  he  claimed,  to  which  D.  replied, 
"  There  was  not ;"  that  "  both  deeds  were  delivered  at  the  same 
time;"  and  that  "  B.  had  given  a  writing  to  that  effect."  E.  there- 
upon took  a  mortgage  of  the  premises  from  C.  to  secure  his  debt; 
C.  being  at  this  time  insolvent.  D.'s  representation,  however, 
was  not  true ;  the  deed  to  B.  having  been,  in  fact,  delivered  first. 
On  a  bill  of  foreclosure,  brought  by  D.  against  E.,  the  plaintiff 
was  estopped  by  these  facts,  from  claiming  a  priority  of  title. 

§  921.  A  mortgage  will  bo  avoided  as  to  third  persons,  by  any 
misrepresentation  or  concealment,  on  the  part  of  the  mortgagee, 
with  respect  to  his  incumbrance,  which  induces  them  to  purchase 
or  make  advances  upon  the  land.'  Where  an  incumbrancer  stood 
by  at  a  treaty  for  the  settlement  of  an  incumbered  estate  on  the 
marriage  of  the  owner's  son,  without  opposition,  and  fraudulently 
concealed  his  charge,  and  privately  assured  the  father  of  the  son 
that  he  would  trust  to  his  j)ersonal  security,  he  was  compelled  to 
reiinquish  his  charge  as  against  the  son  and  his  wife,  and  the  issue 
of  his  marriage.*     Where  a  party  acquiesces  in  a  conveyance  of 

'  Grace  V.  Mercer,  10   B.  Mon.  157;  Lean   v.    Dow,  42  Wis.   610;  Lee  v. 

Duulo3^  V.  Hector,  10  Ark.  281 ;   Coch-  Munroe,    7   Cranch,  3C6  ;    Dodge  v. 

rail  V.  Ilarrou',  23  111.  34.1.  Pope,  93  Iiid.  480;  Williams  v.  Wells, 

«  Otis  V.  Sill,  8  Barb.  102;   Reale  v.  62  Iowa,  740. 

Barclay,  10  B.  Moii.  261.  ^  Berrisford  v.  Milward,  2  Atk.  49; 

2  Cliapmau  v.    Hamiltou,   19  Ala.  Bragg  v.    Boston,  &c.  Co.,  9  Allen, 

121;  Riley  v.  Quigley,  50  111.  304;  Mc-  54;   Drew   v.  Kimball,  43   N.  II.  282; 


Application  to  Mortgages.  1043 

his  own  property  by  another,  under  color  and  claim  of  title,  with 
knowledge  of  the  facts,  he  will  not  be  permitted  to  dispute  that 
title.  Ignorance  of  one's  legal  rights  will  not  prevent  the  appli- 
cation of  this  equitable  estoppel,  when  the  circumstances  would 
otherwise  create  a  bar  to  the  legal  title.  Thus,  where  a  party 
executed  a  mortgage  and  was  compelled  to  borrow  money  from 
a  bank  to  pay  the  interest ;  he  made  default,  and  induced  the 
mortgagee  to  make  sale  under  the  mortgage ;  he  made  an  arrange- 
ment with  the  bank,  by  which  it  was  to  buy  in  the  property,  pay 
the  mortgage,  hold  the  property  until,  by  sales,  they  should  be 
reinbursed  the  amount  they  had  advanced.  This  arrangement 
was  acted  on  during  the  life  of  the  mortgagor  who  attorned  to 
them,  and  proceeded  to  sell  from  time  to  time,  and  applied  the 
proceeds  in  accordance  with  the  agreement,  the  mortgagor  sur- 
rendering possession  to  the  purchasers  of  the  various  parcels  as 
they  were  sold.  The  conduct  of  the  mortgagee  estopped  him 
from  subsequently  asserting  the  irregularity  in  the  foreclosure 
sale,  and  from  recovering  possession  of  the  property  from  the 
grantee's  of  the  bank.  Jlis  wife  was  also  estopped  from  denying 
the  validity  of  the  proceeding,  she  having  affirmed  what  she  did 
during  coverture,  by  recognizing  the  validity  of  tlie  conveyances, 
and  by  accepting  the  surplus  arising  from  sales  made  by  the  bank 
after  her  husband's  death.'  So,  where  a  mortgagor  induces  a  per- 
son to  purchase  a  certilicate  of  sale  by  stating  that  he  had  no  title 
to  the  mortgaged  premises,  and  the  time  of  redemption  expired, 
he  cannot  thereafter  question  the  regularity  of  the  foreclosure 
and  sale,  as  against  such  purchaser.'* 

§  922.  Considerable  judicial  discussion  has  occurred  of  late,  in 
regard  to  the  effect  of  an  attorney,  agent,  grantee,  or  mortgagee 
acting  as  a  witness,  and  subscribing  his  name  to  the  instrument, 
where  such  instrument  is  unrecorded.  The  doctrine  held  by 
some  of  the  courts  of  this  country,  is,  that  such  instrument  is  not 

Moore  v.  Bowman,   6  A.   &  E.   474;  Hoffmire  v.    Holcomb,  17  Kas.  378; 

Thompson  v.  Sanborn,  11  N.  H.  201;  Reed  v.  Leups,  88  Wis.  353;  Southard 

Picard    v.    Sears,    6    A.    &  E.    474;  v.  Perry,  21  Iowa,  488. 

Dewey  V.  Field,  4.  Met.  381;  Bird  v.  ^  Curyea  v.  Berry,  84111.  601;   Ra^ 

Benton,  2Dev.  179;  Governor  v.  Free-  bun  v.  Rabun,  61  Ga.  647;   Power  v 

man,  4  Dev.  473.  Thorp,  93  Pa.  St.  346;  Youngblood  v. 

'  Tilton  Y.   Nelson,  37  Barb.  595;  Cunningham,  64  Ala.  410. 


1044 


The  Law  of  Estoppel. 


notice  to  a  subscribing  witness.'  And  also,  that  a  party  who 
takes  an  acknowledgment  and  writes  the  notes  for  unpaid  pnrcliase 
money,  who  sonietinie  thereafter  purchases  the  proj)erty,  has 
neither  actual  or  constructive  notice,  of  any  claim  by  the  original 
vendor  fur  unpaid  purchase  money."  The  objection  to  the  doc- 
trine established  by  the  above  cases,  is  that  they  ignore  the  very 
object  intended  by  statutes  requiring  attestation.  The  better  rule 
and  one  based  on  sound  principle  is,  that  while  it  does  not  a})])car 
that  a  l^arty  snb.>icribing  his  name  as  a  witness  to  an  insti'ument, 
actually  knows  the  contents  thereof,  which  is  executed  either  in 
his  ))resence  vv  the  execution  of  which  he  is  to  attest ;  yet  where 
it  does  not  appear  that  he  might  not  have  known  the  contents  ; 
it  is  pi'csunied,  that  every  witness  who  can  read  or  write  is 
acquainted  with  the  substance  of  the  deed  or  instrument  which 
he  attests,  and  undertakes  to  support  by  his  evidence.  And 
when  a  prior  mortgagee  or  grantee  is  a  witness  to  a  subsequent 
conveyance  and  does  not  acquaint  the  subsequent  incumbrancer 
or  gi'antee  of  the  fact  that  he  has  a  prior  unrecorded  deed  or 
lien ;  he  should  have  such  prior  deed  or  lien  postponed  in  favor  of 
the  subsequent  one.^  The  failure  to  disclose  the  fact  that  there 
is  a  prior  deed  or  an  unsatisfied  prior  lien  on  the  property  is 


'  Vest  V.  Miohie,  31  Gnitt.  149;  S. 
C,  31  Am.  R  723. 

■*  Wliitc  V.  Fisher,  75  Ind.  65;  S.  C, 
40  Am.  R.  287;  ^lorrison  v.  Bausener, 
32  Gratt.  225;  Beiiuelt  v.  Chase,  72 
Mc.  220;  S.  C,  39  Am.  R.  319;  Ytiger 
V.  Barz,  56  Iowa,  77;  Vest  v.  Micliic, 
31  Gratt,.  149;  S.  C,  31  Am.  R.  722. 

3  ]\Ioroiiy  V.  O'Dea,  1  B.  &  B.  121 ; 
Mocatta  v.  Murgatroyd,  1  P.  Wms. 
394;  Savage  v.  Foster,  9  Mod.  35: 
Briggs  V.  .Jones,  10  L.  R.  Eq.  92:  Rice 
V.  Rice,  2  Drew.  73;  JSTesliu  v.  Wells, 
104  U.  S.  439;  Brown  v.  Sadler.  10  La. 
Ann.  200;  Glieen  v.  Osborne,  11  Ileisk. 
61;  Xicliolsou  v.  Hoover,  4  :My.  &  Cr. 
18G;  Brooks  v.  Record,  47  111.  30; 
Lloyd  V.  Lee.  45  111.  277;  Bri:ikerhoff 
v.  Lansing,  4  .Johns.  Ch.  65;  Kane  v. 
Harrington,  50  111.  232;  Baker  v. 
Humphrey,  101  U.  S.  494;  :Nicholsv. 


Pool,  89  111.  491;  Stephens  v.  Dennett. 
51  N.  H.  324;  Hale  v.  Skinner.  117 
Mass.  474;  Brown  v.  Tucker.  47  Ga. 
485;  Blakemorc  v.  Tabor,  22  Ind.  406; 
Cliapmau  v.  Hamilton,  19  Ala.  121; 
Miller  v.  Bingham,  29  Vt.  82;  Rangely 
v.  Spring,  22  Me.  130 ;  Cochran  v. 
Hariow,  22  111.  345;  Ryburu  v.  Piyor. 
14  Avk.  505;  Bank  v.  Roop,  48  N.'  Y. 
292:  Green  v.  Price.  1  Muufd.  449; 
Bird  v.  Benton.  2  Dev.  L.  179;  Gov- 
ernor V.  Freeman,  4  Dev.  L.  472; 
Hibbard  v.  Stewart,  1  Hilt.  207; 
Ilogan  V.  Brooklyn,  52  N.  Y.  282; 
Cholmondouly  v.  Clinton,  2  Merriv. 
362;  Sleed  v.  Whitaker,  Barn.  C.  C. 
220;  Herring  v.  Ferrers,  Gilb.  Eq. 
Ca.  85;  Edliu  v.  BaUally,  2  Lev.  152; 
Anon.  1  Freem.  310;  Barrett  v.  Wells, 
Pre.  Cha.  131. 


Application  to  Mortgages.  1045 

indicative  of  fraud,  and  the  pnrcliasing  of  property  by  a  witness 
to  an  unrecorded  instrument  is  no  less  so.  Tlius,  where  a  grantor 
conveyed  property  to  a  grantee  receiving  a  purchase  money  mort- 
gage from  the  grantee  v,'hich  was  recorded  with  the  deed,  the 
grantee  never  took  possession.  Tlie  mortgagee  by  an  instrument 
which  was  recorded  assigned  the  mortgage  to  A.,  who  conve3'ed 
the  premises  with  warranty  to  13.,  under  whom  the  parties  chiimed 
title.  The  original  purchaser  and  mortgagor 'resided  near  the 
premises  for  years,  and  knew  that  A.  and  others  were  in  adverse 
possession,  claiming  title,  but  never  claimed  or  intimated  that  he 
hiraselfi  had  any  title ;  he  drew  the  conveyance  of  A.  to  B.,  and 
as  a  notary  public,  took  A.'s  acknowledgment  thereto,  and  was 
silent  as  to  any  defect  in  the  title.  He  subsequently  executed  a 
quit  claim  deed  of  the  premises  to  a  stranger.  It  was  held,  that 
the  facts  made  a  complete  case  of  estoppel  iti  pais,  and  that 
nothing  passed  by  such  quit  claim  deed.'  So  where  G.,  at  the 
request  of  C.'s  son,  bought  of  C,  a  tract  of  land,  not  knowing 
that  a  portion  of  it  was  owned  by  said  son,  and  erected  a  building 
thereon  ;  the  son,  being  a  witness  to  the  deed  was  estopped  to 
set  up  any  title  to  the  portion  of  the  lot  owned  by  him,  and  Avas 
perpetually  enjoined  therefrom.^  So,  where  A.  assigned  to  a 
receiver,  under  a  decree  of  the  court,  all  his  assets,  including 
certain  documents  upon  which  his  attorneys  claimed  a  lien  for 
tlieir  fees.  They,  however,  assisted  in  making  the  assignment, 
and  gave  no  notice  of  the  existence  of  their  lien.  The  assignment 
also  included  a  claim  for  money  which  was  then  in  suit,  and  was 
afterwards  decided  in  favor  of  A.,  the  defendants  therein  paying 
the  money  to  A.'s  attorneys,  by  A.'s  direction,  without  the 
knowledge  either  of  the  receiver  or  of  the  creditors  for  whoses 
benefit  he  had  been  appointed.  The  attorneys  were  estopped  by 
their  silence  from  subsequently  setting  up  a  claim  to  the  money 
paid  under  the  decree.'  So  where  A.  and  B.  executed  a  lease  to 
C.  of  certain  land,  at  an  agreed  rent,  upon  which  C  agreed  to 
erect  certain  buildings,  which  he  should  own  and  remove  at  the 
end  of  the  term  ;  to  secure  the  payment  of  the  I'ent,  the  build- 
ings were  in  the  lease  declared  to  be  mortgaged  to  the  lessors.. 
The  lease  was  signed  and  acknowledged  at  the  time  the  buildings 

'  Baker  v.   Humphrey,   101   U.    S.         «  Gheen  v.  Osborne,  11  Heisk.  6t. 
494.  3  Nichols  V.  Pool,  89  111.  491. 


1046  The  Law  of  Estoppel. 

were  ci-ccted  on  the  property  ;  and  was  recorded  in  the  record  of 
mortgages  of  the  county.  D.  was  a  subscribing  witness  to  the 
execution  of  the  lease  Ijy  0.  ;  and  by  an  arrangement  subsequently 
between  him  and  C,  he  became  the  prospective  owner  of  the 
improvements  to  be  erected  by  C.  on  the  land.  D.  was  estopped 
by  his  own  acts  to  deny  C.'s  ownership  and  the  ownership  of  the 
lease  and  improvements  and  his  right  to  incumber  them  by  liens  ; 
and  all  persons  claiming  under  or  through  D.  were  bound  by  that 
estoppel."  Thus,  where  an  attorney  holding  a  mortgage  upon 
land,  was  employed  by  the  mortgagor  to  draw  the  deed,  and 
assist  in  the  conveyance  of  a  portion  of  the  premises  to  an  ignor- 
ant purchaser,  and,  although  knowing  that  the  purchaser  was 
paying  the  full  value  of  the  property,  concealed  the  fact  of  the 
mortgage,  neither  the  attorney  nor  his  assignee  could  enforce 
the  mortgage  against  this  portion  of  the  land."  Such  transactions 
illustrate  the  mB.x\mf rates  est  celare  fraudem. 

§  923.  Where  a  mortgage  is  properly  filed  or  recorded,  such 
record  is  notice  to  all  the  world  of  the  mortgagee's  rights,  and 
though  he  drafted  the  second  mortgage,  or  witnessed  a  subsequent 
conveyance,  or  stands  by  silently  while  the  property  is  sold  under 
an  inferior  lien,  liis  lien  will  not  be  postponed  or  lost.'  When  a 
mortgagee  causes  his  mortgage  to  be  recorded,  he  has  done  all 
that  is  required  of  him  to  preserve  his  lien  ;  and  all  persons  pur- 
chasing from  the  mortgagor  subsequently,  are  bound  at  their  peril 
to  take  notice  of  the  mortgage,  and  of  the  prior  right  of  the  mort- 
gagee. By  complying  with  the  registration  laws  he  giv,es  all  the 
notice  he  is  bound  to  give  so  long  as  he  remains  passive ;  it  is 
only  when  he  sees  another  purchasing  land  or  obtaining  a  lien 
thereon,  upon  which  he  has  some  unrecorded  lien  or  charge,  of 

'  Blakemore  V.  Tabor,  37  Ind.  466.  16  Pick.  566;   Cooper   v.  Bigley,   13 

9  L'Amraoureux  v.  Vandenburgh,  7  Micli.   463;  Fisber  v.    Mossman,    11 

Paige,  316.  Obio  St.   42;  Tongiie  v.  Nutwell,  17 

=>  Steele    v.    Adams.    21    Ala.    543;  IMd.  212:  Hill   v.  Epley,   31   Pa.    St. 

Jones  V.  Twick,  33  Iowa,  246;   Jack-  332;   Odlin   v.    Gove,    41  N.  H.  477; 

sou  V.  Dubois,  4  Jobns.  216;  Clabaugb  Bigelow  v.  Topliff,  25  Vt.  273;  Carter 

V.  Byorly,  7  Gill,  354;   Brinkerlioff  v.  v.  Cbampion,  8  Conn.  594;   Schade  v. 

'  Lansing,  4  Jobns.    Cb.   65;  James  v.  Bcssiger,  3Neb.  140;Brnwnv.  Tucker, 

Morey,    3    Cow.    246;    Patterson    v.  47  Ga.  485;  Dollett  v.  Kemble,  23  K 

Esterling,    27    Ga.    205  ;    Wbite    v.  J.  E.  58;  Wbite  v.  Pbillips,  12  N.  H. 

Pbelps,  13  N.  H.  382;  Paine  v.  French,  383. 

4  Obio,  318;  Canada  v.  Southwortb, 


Application  to  Mortgages.  1047 

which  the  other  is  ignorant,  that  he  is  bound  to  give  notice 
thereof.  And,  upon  failing  to  do  so  he  is  estopped  to  set  up  Iiis 
claim  against  the  purchaser.' 

§  924.  This  kind  of  fraud  is  chiefly  cognizable  in  equity, 
though  even  courts  of  law  will  often  take  notice  of  it.  In  many 
cases,  equity  and  law  have  concurrent  jurisdiction.  The  prin- 
ciple of  equity  is,  that  where  one  seeks,  by  misrepresentation  or 
even  huproper  concealment  of  facts,  in  the  course  of  a  transaction, 
to  mislead  the  judgment  of  another  to  his  prejudice,  the  court 
will  generally  interfere.  Mere  concealment  or  looking  on  has  the 
same  effect,  as  using  express  words  of  inducement.  •'  Qui  tacet, 
consentire  videtur.  Qui  ])otest  et  debet  vetare  jubetP  If  a  per- 
son maintain  silence,  wlien  in  conscience  he  ought  to  speak, 
equity  will  debar  him  from  speaking  when  conscience  requires 
him  to  be  silent.'  It  is  a  fraud  to  conceal  a  fraud.  If  a  mortgagee 
stands  by  at  the  sale  and  receives  the  consideration,  it  is  a  dis- 
charge of  that  part  from  the  mortgage."  As  a  general  thing  it 
must  appear  that  the  acts  would  not  have  been  done,  and  that  the 
party  must  have  conceived  they  would  not  have  been  doue,  except 
upon  such  encouragement  \*  though,  in  some  cases,  even  the 
ignorance  of  the  party  misleading  has  been  held  to  make  no  differ- 
ence. In  a  case  of  this  kind,  chancery  will  not  only  refuse  its  aid 
to  enforce  the  mortgage,  but,  upon  a  bill  by  the  party  injured,  to 
quiet  his  title,  \Yill  decree  a  perpetual  injunction  against  enforcing 
the  mortgage,  declare  it  void,  or  order  a  release  or  conveyance.* 
A  mortgagee  without  notice  of  an  outstanding  title,  in  one  who 
encourages  him  to  take  the  mortgage,  or  stands  by  and  makes  no 
objection,  will  be  protected  against  it."  So,  where  a  mortgagee 
upon  assurance  that  he  will  be  paid  out  of  another  fund,  allows 

>  Gray  v.    Bartlett,   20  Pick.    180;  Otis  v.  Sill,  8  Barb.  103  ;  D.arnley  v. 

Moore  v.   Bowman,    47  N.    II.    499;  Rector,  10  Ark.  281. 

Mayo  V.    Cartwright,    30    Ark.    407;  ^  Hoffman   v.   Lee.    3    Watts,    352; 

Gnnndie  v.  Water   Co.,  7  Pa.  St.  233;  Napier  v.  Elam,  6  Yerg.  108;  Grace  v. 

Whitman  v.  Boiling,  47  Ga.  125;  Rice  Mercer,   10  B.   Mon.   157;    Carter    v. 

V.  Bunce,  49  Mo.  231;   Meley  v.  Col-  Longworth.  4  Ohio,  385;  Lassalle  v. 

lins,  41  Cal.  G63.  Barnett,  1  Blaokf.  150. 

2  Hall  V.  Fisher,  9  Barb.  17;  Riley  «  Green  v.    Price,   1    Mumfd.    449; 

V.  Quigley,  50  111.  304.                        '  Taylor  v.  Cole,  4  Mumfd.  351;  Stevens 

'  McCormick  V.  Digby,  8  Blackf .  99.  v.    Dennett,    51   N.   H.  324;  Hale  v. 

«lbbotson  V.   Rhodes,   3    Vt.   554;  Skinner,    117   Mass.   474;    Brown  v. 

Tucker,  47  Ga.  485. 


1048  TiiK   Law  of  Estoppkl. 

the  mortgagor  to  sell  tlie  ])ropcrty  witliont  asserting  liis  claim,  the 
purchaser  from  the  mortgagor  will  be  protected,  notwithstanding 
the  fact,  that  the  fund  from  whicli  he  expected  payment,  fails.' 
So,  where  a  mortgagee  agrees  that  his  lien  shall  be  subject  to  cer- 
tain judgments,  he  cannot  assert  a  title  nnder  his  mortgage  as 
against  the  parties  acting  nnder  such  judgments.' 

§  925.  So,  where  A.  bought  land  of  B.,  and  gave  a  mortgage 
for  the  purchase  money  after  judgments  had  been  entered 
against  A.,  the  mortgage  was  recorded.  C.  bought  the  land  at 
sheriff's  sale  on  one  of  the  judgments  subject  to  the  mortgage, 
and  in  consequence  paid  much  less  than  the  value  of  the  land  ;  C. 
sold  ;  the  vendee  having  knowledge  and  retaining  enough  of  the 
purchase  money  to  pa}'  the  mortgage,  is  estopped  from  denying 
that  he  bought  subject  to  the  mortgage.'  A  mortgagee,  Avho  after 
assigning  an  interest  in  the  mortgage  debt,  files  a  bill  in  the 
name  of  himself  and  the  assignee  to  foreclose,  and  alleges  therein 
under  oath  the  assignment,  is  estopped  from  setting  np  usury 
in  the  assignment."  Where  a  mortgafjee  assigns  the  mortgage 
and  notes  secured  thereby,  with  a  covenant,  that  he  "is  lawfully 
seized  in  fee  of  said  notes  and  has  good  right  to  sell  the  same," 
he  is  estopped  from  den^'ing  that  they  Avere  not  all  due  according 
to  their  tenor."  An  assignee  of  a  mortgage  after  foreclosure, 
Avho  promises  a  subsequent  mortgagee  that  he  may  redeem  after 
the  expiration  of  the  decree,  provided  the  mortgagor  does  not, 
is  estopped  in  ecjuity  from  denying  the  right  of  said  mortgagor 
to  redeem,  and  the  estoppel  applies  to  a  jiurchaser  of  the  decree 
cognizant  of  the  mortgagee's  claim  and  right  to  redeem  under 
the  decree."  A  mortgagee  cannot  buy  in  an  outstanding  title 
niidei-  an  arrangement  with  the  mortgagor  that  it  is  to  be  helt^., 
like  tlie  mortgage,  subject  to  redemption,  and,  when  the  title  is 
acquired,  turn  round  and  insist  that  he  lias  purchased  as  a  stran- 
ger, lie  must  allow  the  mortgagor  to  redeem.'^  So,  where  a 
bond  and  mortgage  is  made  to  certain  persons  as  executors,  and 
the  money  due  is  also  payable  to  them,  and  the  survivor  or  sur- 

'  Taylor  v.  Cole,  4  Jlunfil.  3ol.  "  Mumford  v.  Ins.  Co.,  4  N.  Y.  463. 

«  Butler  V.  Miller.  5  Deiiio,  154.  ^  Haskell  v.  Ins.  Co. ,  52  Me.  128. 

3  Cook  V.  Douglass,  m  Pa.  St.  51 ;         «  Woodward    v.    Couchey,  41    Vt. 
Wilson  V.  Wilson,  32  Barb.  328.  496. 

'  Moore  v.  Titman,  44  111.  367. 


Application  to  Mortgages.  1049 

vivors,  tbej  arc  estopped  to  claim  tliat  they  bold  in  a  different 
personal  capacity/  Where  a  mortgage  was  made  by  live  joint 
trustees,  and  a  mortgage  of  the  joint  trust  property  was  given 
to  secure  tbe  note,  purporting  to  convey  tlie  wbole  estate,  but 
signed  by  only  four  of  tbe  trustees,  altbougb  drawn  in  tbe  name 
of  all,  and  it  appeared  from  tbe  circumstances  tbat  tbe  otber 
trustee  must  bave  known  of  tbe  transaction,  and  tbat  be  never 
made  any  objection  to  it,  it  was  held  tbat  tbe  mortgage  was  bind- 
ing upon  bim  by  an  equitable  estoppel,  and  tbat  tbe  purchaser 
of  tbe  equity  of  redemption  of  tbe  mortgngors  at  a  sheriff's  sale 
was  also  bound  by  it.''  So,  a  mortgagor  who  assigns  a  mortgage 
and  all  persons  claiming  under  bim  are  estopped  from  denying 
tbat  tbe  mortgage  was  executed  without  the  consent  of  tbe  mort- 
gagee as  against  a  purchase  under  a  foreclosure  of  that  mortgage.^ 
So,  a  concealment  or  entry  of  satisfaction  of  a  mortgage  pro- 
cured by  fraudulent  representations  to  the  injury  of  third  par- 
ties is  void." 

§  926.  Where  a  person  takes  from  anotlier  a  mortgage  of 
lauds,  tbe  record  title,  which  is  in  himself  at  the  time  such 
mortgage  is  executed,  and  in  good  faith  assigns  such  mortgage 
and  it  is  foreclosed,  neither  such  mortgagee  nor  his  representa- 
tives or  privies  can  set  up  such  a  prior  title  in  him  to  defeat  the 
mortgage.  They  are  estopped  by  his  acts,  and  it  makes  no  dif- 
ference whether  it  can  be  proved  that  he  ever  executed  a  deed 
of  the  lands  to  tbe  mortgagor  or  not.^  So,  where  a  vendor  put 
his  vendee  in  possession,  and  executed  and  placed  in  his  hands  a 
deed  of  conveyance,  for  tbe  land  sold,  with  an  understanding 
between  them,  tbat  the  deed  should  not  be  considered  delivered, 
or  become  effectual  until  tbe  purchase  money  should  be  paid, 
and  tbe  vendee  subsequently  put  the  deed  upon  record  with- 
out paying  the  purchase  money,  mortgaged  tbe  land  to  a  hG7ia 
fide  mortgagee  for  value,  without  notice,  the  vendor  was  estop- 

1  People    V.   Miner,   37  Barb.   446;  179;  Brown  v.  Snell,  46  Me.  490. 

Lloj'd  Co.  V.  Morrison,  40  Iowa,  188;  ^  Loomis  v.  Stuyvesaut,  10  Paige, 

Colbj'  V.  Osgood,  29  Barb.  339;  Farn-  490. 

ham  V.  Mailory,  5  Abb.  P.  (N.  S.)  380;  *■  Buckingham  v.  McLean,  13  How. 

Lockwood  V.  Slevin,  26  Ind.  124.  150;  McLean  v.  Bank,  3  McL.  589. 

»  Bank  v.  Campbell,   2  Rich.  Eq.  ^  Rogers  v.  Cross,  3  Chand.  34. 


1050  The  Law  of  Estoppel. 

pcd,  as  between  hiiii  and  the  mortgagee,  from  den^'ing  tlie  deliv- 
ery of  the  deed,  or  asserting  any  claim  to  the  land.' 

§  927.  Where  a  party  gave  a  mortgage  npon  real  estate  in  his 
possession,  the  title  to  which  is  in  another  party,  who  after- 
Avards  conveyed  to  the  mortgagor,  and  in  such  conveyance  de- 
scribed the  property  conveyed  as  subject  to  his  mortgage,  it 
was  held  that,  as  against  the  grantee  and  all  persons  claiming 
under  him,  the  land  conveyed  was  as  effectually  charged  with 
the  incumbrance  as  if  it  had  been  expressly  mortgaged  therefor.* 
Bona  fide  purchasers  are  bound  by  the  estoppel  of  prior  grants, 
for  the  reason  that  the  assignment  of  a  mortgage  is  always  sub- 
ject to  the  equities  of  the  mortgagor  and  those  claiming  under 
liim.  An  assignment  of  a  mortgage  estops  the  mortgagor  from 
alleging  that  it  was  satisiied/  A  mortgagor  is  estopped  to  deny 
the  fact  of  an  entry  having  been  made  for  condition  broken,  by 
the  mortgagee,  when  he  has  signed  a  certificate  to  that  effect  on 
the  deed.*  But  merel}'  suffering  the  mortgagee  to  enter  and 
record  a  certificate  of  sucli  entry  for  a  breach  of  the  condition 
docs  not,  after  a  lapse  of  three  years,  estop  the  mortgagor  from 
denying  any  breach,  and  showing  that  none  had  been  made.*  A 
defendant  in  an  action  to  foreclose  a  purchase  money  mortgage, 
cannot  set  up  as  a  defense  a  failure  of  title  where  there  has  been 
no  eviction  or  disturbance  of  his  possession.'  The  receipt  by  the 
mortgagor  of  the  surplus  proceeds  of  a  sale  on  foreclosure  estops 
him  from  setting  up  any  irregularities  in  the  mode  of  service.^ 
It  makes  the  proceedings  conclusive  on  him.  Where  a  trustee  and 
a  cestui  qui  trust,  mortgage  the  trust  property  in  breach  of  the 
trust,  they  are  estopped  from  setting  up  such  breach  in  defense  of 
•an  action  by  the  mortgagee  of  the  mortgage.*     So,  the  survivor 

'  Resor  V.  R.  R.,  17  Ohio  St.  139;  Ltitimerv.  Rogers.  3  Head,  692;  Kin- 

Findley  v.  Keltleman,  14  Iowa,  173;  dell  v.  Frazer,  9   Heisk.  727;  Kile  v. 

Jarvis  V.  Dcaue,  50  Me.  9.  Yellowhead,    80  111.  208;   Hartshorn 

*  Swcet7X'r  v.  .Jones,  35  Vl.  317.  v.  Potrofflu,  89  111.  509;   Herndon  v. 
«  Jackson    v.   ^Va]d^()n,    13   Wend.  Moore,  18  S.  C.  339;  Test   v.    Leacli, 

178;    E(hvards    v.    Varick.    5  Denio,  7CInd.  452;  McDaiiicl   v.    Anderson, 

6(34.  19  S.    C.    211:    Mather   v.  Knox,   34 

*  Bennett  v.  Conant,  10  Cusb.    167.  La.  An.  410  ;  Goodman  v.  Winter,  64 

*  Petteey's  Case,  11  Gray,  478.  Ala.  410;  Filzpatrick  v.  Apperson,  79 

*  Farnam  v.  Hotclikiss,  2  Keyes,  9.  Ky.  272. 

'  Soutl'.ard  v.  Perry,  21   Iowa,  488;         »  Ryder  v.  Sisson,  7  R.  I.  341 


Application  to  Mortgages.  1051 

of  partners  who  had  executed  a  mortgage  is  estopped  to  deny 
that  it  was  partnership  property.* 

§  928.  The  validitj^  of  a  mortgage  and  the  regularity  of  the 
judgment  on  a  scire  facias  obtained  on  it  cannot  be  questioned 
by  one  not  connected  with  the  mortgagor's  title  as  grantee,  mort- 
gagee, judgment  creditor,  &c.  Thus,  where  a  married  woman 
executed  a  mortgage  in  her  maiden  name,  scij^e  f aclases  on  it 
were  issued  against  her  in  that  name,  judgment  was  recovered 
after  two  nihils,  and  the  land  sold  by  the  sheriff  ;  it  was  held,  that 
the  purchaser  took  a  good  title,  and  the  validity  of  the  mortgage 
could  not  be  inquired  into  in  an  action  of  ejectment  for  the  mort- 
gaged premises.*  Where  a  mortgage  is  made  in  express  terms 
subject  to  certain  bonds  secured  by  prior  mortgage,  the  bonds 
being  negotiable  in  form,  and  having  in  fact  passed  into  circula- 
tion before  such  mortgage  was  given,  the  junior  mortgagees  and 
all  parties  claiming  under  them  are  estopped  from  denying  the 
amount  or  validity  of  such  bonds  in  the  hands  of  bona  fide 
holders.^  Tlie  release  of  a  mortgage,  obtained  in  good  faith  from 
a  foreign  administrator,  estops  the  same  administrator  after  taking 
out  letters  within  the  state  from  objecting  that  he  had  no  power 
to  release.* 

§  929.  The  mortgagor  of  a  chattel  having  the  right  of  posses- 
sion for  a  certain  period,  or  a  purchaser  from  him,  cannot,  after 
its  expiration,  dispute  the  title  of  the  mortgagee."  Where  a  mort- 
gagee of  personal  property,  not  in  possession,  is  present  at  the 
sale  of  such  property  by  the  mortgagor  to  another,  and  such 
mortgagee,  on  being  asked  to  fix  the  price  between  the  mortgagor 
and  purchaser,  does  not  notify  the  purchaser  of  his  mortgage, 
and  the  property  is  afterwards  delivered  to  the  purchaser,  the 
mortgagee  cannot  recover  the  property  as  against  such  purchaser, 
without  notice.'  A  husband  who  is  present  at  the  execution  of  a 
mortgage  by  his  wife,  of  his  personal  property,  and  who  assents 
to  its  execution,  is  as  effectually  bound  by  the  mortgage  as  though 

1  Roberts  v.  Oliver,  46  Ga.  547.  *  Vroome  v.  Van  Home,  10  Paige, 

"  Hartman   v.    Ogman,    54   Pa.    St.      549. 
120;  Glass  v.  Gieben,  54  Pa.  St.  2G6;         *  Holmes  v.  Hall,  3  Dev.  98. 

^  Bronsoa  v.  Lu  Crosse  R.    R.,    2         «  brooks  v.  Record,  47  111.  30;  Lloyd 
Wall.  283.  V.  Lee,  45  111.  277;  Kane  Co.  v.  Her- 

rington,  50  111.  232. 


1052 


Tjik    Law  of  Estoppel. 


ho  executed  it  himself.'  So,  where  a  Imshand  permits,  without 
objection,  liis  wife  to  liold  herself  out  before  the  world  as  trans- 
actiiiiT  business  on  her  sole  or  separate  account,  and  to  deal  with 
the  ]iropcrty  as  her  own,  the  husband  is  estopped  from  settinj^  up 
any  claim  to  the  same  against  the  mortgagee  of  his  wife,  although 
he  may  advance  money  to  her  in  business,  and  she  uses  it  to  pur- 
chase the  mortgaged  property  with.^  If  a  party  having  knowl- 
edge that  he  has  title  to  property,  stands  by  and  sees  another 
mortgage  it  to  a  third  person,  to  secure  a  debt  or  liability  incurred 
at  the  time,  without  giving  notice  of  his  title,  he  is  estopped  from 
setting  it  up  afterwards  in  a  suit  at  law.'  If  a  mortgagor  sees  a 
person  who  takes  an  assignment  of  his  mortgage,  pay  full  value 
therefore,  and  conceals  from  the  assignee  an  equitable  defense 
which  he  has  to  it,  he  will  not  be  permitted  thereafter  to  set  up 
such  defense."  So,  where  a  judgment  was  confessed  for  a  debt 
secured  by  a  chattel  niortgage  and  execution  issued  thereon  and 
levied  upon  the  chattels  mortgaged,  which  were  advertised  for 
sale  thereunder,  and  after  the  property  was  sold  under  another 
execution  against  the  mortgagor,  the  mortgagees  moved  for 
an  order  to  apply  the  proceeds  to  the  satisfaction  of  their  judg- 
ment. In  an  action  of  trover  against  the  sheriff  who  made  the 
sale,  their  acts  were  repugnant  to  any  claim  under  the  mortgage 
and  estopped  them  from  claiming  the  property.* 


'  Egcrton  v.  Thomas,  9  N.  Y.  40; 
Antliony  v.  Stevens,  46  Ga.  241; 
Stewart  v.  Mix,  30  La.  An.  103G. 

^  Sanimis  v.  McLaughlin,  35  N.  Y. 
647;    Sherman  v.    Elder,    24    N.    Y. 


Buckley  v.  AVells,  33  Is.  Y.  518. 

^  Thompson  v.  Sanborn,  11  N.  H, 
201. 

•»  Lee  V.  Kirkpatrick,  17  N.  J.  E. 
264. 


381;  Smith  v.  Knapp,    30  N.  Y.  581;         '  Butler  v.  Miller,  1  N.  Y.  496. 


Equitable  Estoppels.  1053 


CHAPTER  XY. 

EQUITABLE  ESTOPPELS  AS  AFFECTINa  THE  TITLE  TO  LAND. 

Section  930.  As  wo  have  heretofore  seen,  in  the  case  of 
estoppels  by  deed,  that  the  most  striking  instances  of  its  applica- 
tion were  in  regard  to  its  effect  on  the  title  to  land  in  passing  an 
after  acquired  estate,  it  is  proper  to  notice  the  same  application 
of  the  doctrine  of  equitable  estoppel  in  regard  to  real  or  personal 
property  in  a  manner  as  effectual,  if  not  more  so,  than  where  a 
vendor  or  purchaser  attempts,  b}'  deed,  to  convey  land  without 
any  title,  in  its  action  in  conveying  real  and  personal  property 
without  any  written  conveyance  or  agreement,  or  express  inten- 
tion so  to  do. 

§  931.  No  portion  of  the  law  of  equitable  estoppel  is  more 
important  than  that  which  applies,  when  a  sale  is  made  without 
authority  or  title,  and  is  sanctioned  at  the  time  or  is  ratiiied  sub- 
sequently by  the  owner,  and  renders  the  title  of  the  purchaser 
vaHd,  by  imposing  silence  on  the  only  person  entitled  to  contest 
it.'     This  principle  applies  irrespective  of  the  nature  of  the  prop- 

'  Huasdeu  v.  Clieyney,  2  Veru.  150;  v.  Van  Phul,   1  Wall.  274;    Smiley  v. 

Wendell  v.  V.'ia  Reussehier,    1  John.  Wrigbt,    2   Ohio,   510;   Snodgrass    v. 

Ch.  344;   Wells   v.   Pelrce,  27   N.  H.  Ricketts,  13  Cal.  359;   Stevens  v.  Mc- 

303;   Hatch  v.  Kimball,  16  Me.  146;  Namara,  36   Me.  176;   Woods  v.  Wil- 

Higgins    V.    Ferguson,    14    111.    269;  son,  37   Pa.  St.  379;   McCuue   v.  Mc- 

Kangely  v.  Spring,  22  Me.  130;  Pick-  IMichael,  29  Ga.  312;  Bigelow  v.  Foss, 

aid  V.   Sears,  6   A.  &  E.  469;  Brooks  59Me.'l62;  Beaupland  v.  McKeen,  28 

V.  Record,  47  111.  30;  Nixon  v.  Caroo,  Pa.   St.   124;   Shaw    v.  Beebe,  35  Vt. 

28   Miss.   414;   Tilton    v.    Nelson,  27  205;   Sanderson  v.  Ball;ince,  2   Jones 

Barb.  595;  Bradley  v.  Snyder,  14  111.  Eq.    322;   Savage   v.    Foster,  9    Mod. 

263;  Hihbard  v.  Stewart,  1  Hilt.  207;  435;   Brown    v.   Wheeler,    17    Conn. 

Durham  v.  Alden,    20  Me.  228;   Car-  245;   Shapely  v.  Rangely,  1  W.  &  M. 

penter    v.    Stillwcll,    12    Barb.    128;  213;  Vanhorn  v.  Frick,  3  S.  &  R.  278; 

Doub  V.  Mason,  2Md.  380;   Bucking-  Car  v.  Wallace,  7  Watts,  394;  Thomp- 

bam  V.  Ilanna,  6  Ohio  St.  559;   Cope-  son  v.  Sanborn,  11  N.  H.  201;  Brown 

land  V.  Copeliiud,  28  Me.  524;   Gregg  v.  Bowen,  30  N.   Y.  519;   Nashan  v. 


1054 


Affecting  Title  to  Land. 


erty  sold,  and  the  estoppel  will  be  so  moulded  as  to  prevent  fraud 
and  injustice  in  whatever  form  it  may  present  itself.  The  prin- 
ciple tliat  one  who  encourages,  or  even  stands  by  and  sanctions, 
the  acquisition  of  land  b}'  another,  will  not  only  be  estopped  from 
invalidating  the  interest  thus  acquired,  by  the  subsequent  asser- 
tion of  a  title,  with  full  knowledge  at  the  time,  but  nuiy  be  com- 
pelled to  make  a  conveyance  to  the  purchaser,  is  an  old  and  well 
established  one  at  equity,  and  also  in  modern  times  in  courts  of 
law.  The  rule  is  a  broad  one,  and  is  equally  applicable,  whether 
the  sale  be  public  or  jn-ivate,  the  act  of  the  parties  themselves  or 
the  act  of  the  law,  with  this  limitation  in  regard  to  sales  b}^  author- 
ity of  law,'  that,  as  the  sale  is  of  the  interest  only  of  the  defendant 
in  the  execution,  requiring  clearer  proof  than  is  necessary  in  other 
cases  to  estop  third  persons  from  asserting  an  adverse  interest 
which  is  not  prima  facie  within  the  scope  of  the  sale." 

§  932,  The  statute  of  frauds  requires  a  writing,  when  real 
estate  is  in  question,  and  the  title  to  land  cannot  be  transferred^ 
or  its  assertion  precluded  under  ordinarj^  circumstances  by  an  act 
in  pais  or  an  oral  declaration.  It  is  held  in  some  few  States' 
that  in  a  court  of.  law  there  can  be  no  estoppel  affecting  the  title 
to  land,  unless  in  writing  ;  for  at  law  the  title  can  pass  only  by 
writing.     This  matter  has  been  fully  examined  in  chapter  XII, 


Turbeville,  1  Swan.  A?,!;  Drew  v. 
llust.  .36  N.  n.  335;  Bird  v.  Beulon,  2 
I)ev.  179;  Oxley  v.  Fitcnian,  4  Dev. 
472;  Giac-e  y.  ]\Icrccr,  10  B.  Mon.  157; 
Blackwood  v.  Jones,  4  Jones  Eq.  54; 
Ryder  v.  Rubber  Co.,  4  Bosw.  169; 
Trapnall  v.  Burton,  29  Ark.  371;  Mills 
V.  Graves,  34  111.  455;  Pasley  v.  Free- 
man, 3  T.  R.  51;  Evans  v.  Bicknell,  6 
Ves.  174;   Slim  v.  Cioucher,  1  De  F. 

6  G.  518;  Lee  v.  Monroe,  7  Crancli, 
366. 

>  Stone  V.  Butler,  21  Ala.  543  ; 
Brown  v.  Bank,  9  Ga.  187;  Billington 
V.  Welch,  5  Binn.  129;  Covert  v.  Ir- 
win, 3  S.  &  R.  283;  Randall  v.  Silver- 
thorn,  4  Ga.  177;  Epley  v.  Whiterow, 

7  Walts,  1G3;  Riddle  v.  Moore,  3  Pa. 
St.  161;  Reed  v.   Hensly,  2  B.  Mon. 


254;  Otis  V.  Sill,  8  Barb.  102:  Eish- 
beck  V.  Zimmerman,  2  Pa.  St.  317; 
Morford  v.  Bli.ss,  12  B.  Mon.  255; 
Wbittin'rton  v.  Wright,  9  Ga.  313; 
Wallace  v.  Tate,  6  B.  Mon.  529. 

2  ]Menge3  v.  Oyster,  4  W.  &  S.  120. 

3  Blake  v.  Fash,  44  111.  202;  Wm- 
slow  v.  Cooper.  104  111.  235;  Hayes  v. 
Livingstone,  34  ]Mich.  384'.  Nims  v. 
Sherman,  43  ^licli.  45;  While  v.  Ilape- 
mau,  43  r^Iich.  367;  Shaw  v.  Cham- 
bers, 48  Mich.  355;  De  Mill  v.  Moffat, 
49  Mich.  25;  Taylor  v.  Ass.,  68  Ala, 
229;  Kelly  v.  Hendricks,  57  Ala.  193; 
Stockyards  v.  Feny  Co.,  102  111.  514; 
Wimmer  v.  Ficklin,  14  Bush,  193; 
Wales  V.  Bogue,  31  111.  464;  Mills  v. 
Graves,  38  111.  406;  Goodman  v.  Win- 
ter, 64  Ala.    410. 


Equitable  Estoppel.  1055 

ante.  Although  a  party  cannot  divest  himself  of  a  freehold  estate 
by  parol,  yet  he  may,  without  writing,  so  conduct  himself  with 
reference  to  it  that  he  will  be  estopped  afterwards  to  assert  a 
claim  thereto  ;  and  this  doctrine  of  estoppel  is  applied  without 
reference  to  the  provisions  of  the  statute  of  frauds.  Thus,  R. 
conveyed  to  a  railroad  comoany  tw^entytwo  acres  of  land,  upon 
condition  subsequent  tliat  the  company  should  locate  its  track  and 
depots  as  specified  in  the  deed.  Afterwards,  it  was  agreed  by 
parol,  between  R.  and  the  president  and  chief  engineer  of  the 
company,  that  the  track  and  depots  should  be  located  differently, 
and  the  company  should  reconvey  to  li.  the  twenty-two  acres, 
and  that  R.  should  conve}^  to  the  company  six  acres,  a  part  of  the 
twenty-two.  The  six  acres  were  marked  off  in  a  map  made  by 
the  company,  as  its  property,  and  the  tracks  and  depots  located 
thereon  according  to  the  last  agreement.  R.  afterwards  applied 
to  the  president  of  the  company  for  a  reconveyance.  He  declined 
to  make  it  until  it  was  ascertained  how  much  of  the  twenty-two 
acres  another  connecting  railroad  company  might  need  for  depot 
purposes,  stating  that  then  all  not  so  needed  would  be  reconveyed. 
He  told  R.,  however,  to  go  ahead  and  make  sale  of  town  lots, 
parts  of  the  property,  and  the  company  would  convey  to  the 
vendees.  Upon  the  president's  death,  R.  brought  his  agreement 
to  the  notice  of  his  successor,  who  recognized  it,  and  promised 
that  it  should  be  carried  out.  R.  laid  off  town  lots  on  the  six- 
teen acres,  and  sold  many,  which  were  afterwards  improved. 
The  company's  officers  were  aware  of  these  sales,  and  saw  the 
improvements  being  made.  In  a  subsequent  controversy  between 
R.  and  the  company,  the  latter  asserted  its  right  to  the  whole 
twenty-two  acres,  denying  the  authority  of  its  president  and 
chief  engineer  to  make  the  agreement  to  reconvey,  and  insisting 
that  it  was  void,  because  not  in  writing.  The  company  was 
estopped  to  deny  the  authority  of  the  officers,  and  R.  was  entitled 
to  all  the  land,  except  the  six  acres.  R.,  by  the  agreement,  had 
waived,  as  to  the  six  acres,  his  right  to  a  forfeiture  for  nt)u-com- 
pliance  by  the  company  with  the  condition  of  the  deed.' 

§  933.  A  party  who  has  a  title  to  any  property,  real  or  per- 
sonal, may  by  his  conduct  in   including  others  to  deal  with  it, 

>  R.  R.  Co.  V.  Ragsdale,  54  Miss.  200. 


1056  Affp:cting   Titlk  to  Land. 

without  informing  tlioin  of  his  claim,  debar  himself  from  assert- 
ing that  title  to  the  injury  of  such  others.  This  principle  was 
enunciated  in  the  leading  case  of  Wendell  v.  Van  Kensselaer.' 
"•There  is  no  principle  better  established,  nor  one  founded  on 
more  solid  considerations  of  equity  and  public  utility,  than  that 
which  declares  that  if  one  man  knowingly,  though  he  does  it  pas- 
sively, b}^  looking  on,  suffers  another  to  purchase  and  expend 
money  on  land  under  an  erroneous  opinion  of  title,  without 
making  known  his  claim,  he  shall  not  afterward  be  permitted  to 
exercise  his  legal  right  against  such  person.  It  would  bean  act  of 
fraud  and  injustice,  and  his  conscience  is  bound  by  this  equitable 
estoppel."  Qui  tacet,  consentlre  vidsficr,  qui  potest  et  debet 
vctare^juhet. 

The  case  in  which  this  language  was  used  was  one  where  the 
defendant  claimed  under  a  secret  deed,  intentionally  concealed 
for  many  years,  the  grantor  in  the  mean  time  remaining  in  pos- 
session ;  dealing  with  the  land  as  owner, and  with  the  knowledge 
of  the  defendant ;  making  sales  in  fee  of  different  parcels  to  third 
persons,  who  entered  into  possession  and  made  extensive  improve- 
ments, the  defendant  standing  by  and  giving  no  notice  of  his 
claim.  "After  this,"  says  the  chancellor,  "he  cannot  be  per- 
mitted to  start  up  with  a  secret  deed  and  take  land  from  bona 
fide  purchasers  from  the  testator."  That  case  w^as  between  the 
owner  of  the  legal  title  under  a  secret  deed  and  the  purchasers 
and  grantees  of  the  former  owner.  The  same  principle  is  appli- 
cable in  order  to  protect  creditors  who  have  ■given  credit  upon 
the  apparent  ownersiiip  of  property  in  possessioTi  of  the  debtor 
against  a  secret,  unrecorded  conveyance,  fraudulently  concealed 
by  the  grantee;  as  when  his  knowledge  that  the  debtor  is  holding 
himself  out  as  owner  and  is  gaining  credit  upon  this  ground,  he 
keeps  silence,  giving  no  indication  of  his  claim.  Thus,  where 
bond  creditors  to  the  father  for  monej'  lent  twelve  years  after  a 
voluntary  settlement  on  trustees  for  the  son's  who  did  not  enter 
aiid  take  possession  according  to  the  deed,  but  ])erniittcd  the 
settler  to  live  in  the  house,  etc.,  it  was  said  that  the  deed  not  at 
llrst  fraudulent  may  subsequently  become  so  by  being  concealed 
and  not  produced,  "  by  which  means  creditors  are  drawn  in  to 
lend  their  money.""     So  if  the  true  owner  stands  by  and  advises 

•  1  Johus.  Ch.  344.  a  Hungerfoid  v.  Earle,  2  Vein.  361. 


Equitable  Estoppel.  1057 

and  encourages  a  purchase  from  another,  although  in  ignorance 
of  his  own  title,  he  cannot  afterwards  assert  it  to  the  injury  of  the 
purchaser.'  If  a  person  does  an  act  at  the  suggestion  and  request 
of  another,  that  other  will  not  be  permitted  to  avoid  the  act 
^\'hen  it  turns  out  to  the  prejudice  of  an  antecedent  right  or 
interest  of  his  own,  although  the  advice  on  which  the  other  party 
acted  was  innocently  given  and  in  ignorance  of  his  own  claim. 
While  it  is  well  settled  that  the  owner  of  land  may  by  acts  in 
pais  preclude  himself  from  asserting  liis  legal  title,  it  must  be 
obvious  that  the  doctrine  should  be  carefully  and  sparingly 
applied,  and  only  on  the  disclosure  of  clear  and  satisfactory 
grounds  of  justice  and  equity.  It  is  contrary  to  the  letter  of  the 
statute  of  frauds,  and  it  would  greatly  tend  to  the  insecurity  of 
titles,  if  they  were  allowed  to  be  affected  by  parol  evidence  of 
light  or  doubtful  character.  To  authorize  the  finding  of  an 
estoppeH?i  ^^a/s  against  the  legal  owner  of  the  laud,  there  must 
be  shown  either  actual  fraud  or  fault,  or  negligence  equivalent  to 
fraud,  in  concealing  his  title,  or  that  he  was  silent  when  circum- 
stances would  compel  an  honest  man  to  speak,  or  such  actual  inter- 
vention on  his  part,  as  to  render  it  just  as  between  him  and  the 
party  acting  on  his  suggestion  that  he  should  bear  the  loss. 
Moreover,  the  party  setting  up  the  estoppel  must  be  free  from 
laches,  in  acting  upon  the  belief  of  ownership  by  one  who  has  no 
right.' 

§  934.  In  a  late  case  in  the  Supreme  Court  of  the  United 
States,  the  court,  Justice  Swayne  delivering  the  opinion  say : 
"  This  defense  is  founded  upon  the  letter  of  C  The  contents  of 
the  letter  of  M.,  to  which  it  refers,  are  not  given  in  the  finding 
of  facts,  but  the  subject  of  that  letter  and  the  inquiry  which  it 
made,  appear  clearly  in  the  letter  of  C.  He  said  :  'M.  wrote  me 
a  letter.  Ele  wanted  to  know  if  I  intended  to  claim  any  of  the 
farm  (the  premises  in  controversy).  You  can  tell  M.  for  me,  he 
need  not  fear  anything  from  jne.  Thank  God,  I  am  well  off  here, 
and  you  can  claim  all  there.  This  letter  will  be  enough  for  him. 
1  intended  to  give  you  and  yours  all  my  property  there,  and  more 
if  you  need  it.'     The  phrase   '  I  intended   to  give,'  &c.,  implies 

1  Storrs  V.  Barker.  6  Johns.  Cli.  16G.      834;   Bernstein  v.  Smith,  10   Kas.  60; 
^  Banking  Co.  v.  Duncan,  8G  IN.  Y.      Ayres  v.  Probasco,  14  Kas.  190. 
5i2;  Andrews  v.   Ins.  Co.,  85  N.  Y. 
Vol.  1—67 


1058  Affecting   Title  to  Land. 

that  he  know  liis  half  of  the  farm  liad  already  been  sold  to  M., 
and  that  he  could  not,  therefore,  give  his  sister,  to  whom  the 
letter  Avas  addressed,  any  part  of  that  property.  It  does  not 
appear  that  there  was  any  other  propertj'  held  by  them  as 
coparceners.  lie  says  further,  that  he  intended  to  give  licr  more 
if  she  needed  it.  All  this  was  connniinicated  to  L.  What  was 
the  effect  upon  him  ?  lie  Avas  lulled  into  security.  He  took  no 
measures  to  perfect  his  title,  nor  to  procure  any  redress  from  K., 
who  had  conveyed  and  been  paid  for  the  whole  of  the  property 
while  they  owned  but  the  half.  On  the  contrary,  he  gave  there- 
after deeds  of  warranty  to  all  the  defendants — who  are  sixty-two 
in  number — and  he  and  they  occupied  and  improved  the  premises 
down  to  the  commencement  of  this  suit.  Between  that  time  and 
the  date  of  the  letter  was  a  period  of  nearly  seventeen  years. 
What  improvements  were  made,  and  how  far  the  property  had 
risen  in  value  are  not  disclosed,  nor  does  it  appear  what  stim- 
ulated C.  to  violate  his  promise  and  commence  his  attack  on  the 
defendants. 

"  The  estoppel  here  relied  npon  is  known  as  an  equitable 
estoppel  or  estoppel  in  jpais.  The  law  npon  the  subject  is  well 
settled.  The  vital  principal  is  that  he  wlio  by  his  language  or 
conduct  leads  another  to  do  what  he  would  not  otherwise  have 
done,  shall  not  subject  such  person  to  loss  or  injury  by  disappoint- 
ing the  expectations  upon  which  he  acted.  Such  a  change  of 
position  is  sternly  forbidden.  It  involves  fraud  and  falsehood, 
and  the  law  abhors  both.  This  remedy  is  always  so  applied  as  to 
promote  the  ends  of  justice.  It  is  available  only  for  protection, 
and  cannot  be  used  as  a  weapon  of  assault.  It  accomplishes  that 
which  ought  to  be  done  between  man  and  man,  and  is  not  per- 
mitted to  go  beyond  this  limit.  It  is  akin  to.  the  principle 
involved  in  the  limitation  of  actions,  and  does  its  work  of  justice 
and  icpose  where  the  statute  cannot  be  invoked.  Here,  accord- 
ing to  the  finding  of  the  court,  the  time  of  adverse  possession 
lacked  but  a  3-car  and  a  month  of  being  twenty  years — when,  it 
is  conceded  the  statutory  bar  would  have  been  complete. 

"  In  Faxon  v.  Faxon,'  a  njortgagee  holding  several  mortgages 
prevailed  on  a  son  of  the  deceased  mortgagor,  then  intending  to 
remove  to  a  distance,  to  remain  on  the  premises  and  support  the 

1  28  Mich.  109. 


Equitable  Estoppel.  1059 

family,  by  assuring  him  that  the  mortgages  should  never  be  en- 
forced. The  son  supported  the  family,  and  tlie  property  grew  in 
value  under  his  tillage.  After  the  lapse  of  several  years  the 
niortgagee  proceeded  to  foreclose.  He  was  held  to  be  estopped 
by  his  assurances  upon  which  the  son  had  acted.  The  court  said 
'  the  complainant  may  have  estopped  himself  without  anj'  positive 
agreement,  if  he  intentionally  led  the  defendants  to  do  or  abstain 
from  doing  anything  involving  labor  or  expenditure  to  any  con- 
siderable amount,  by  giving  them  to  understand  they  should  be 
relieved  from  the  burden  of  the  mortgages.'  In  Harkness  v.  Toul- 
min,'  and  Truesdale  v.  Ward,'  this  principle  was  applied,  in  the 
former  case,  to  the  extent  of  destroying  a  chattel  mortgage,  and 
in  the  latter  of  forfeiting  rights  under  a  land  contract,  where 
parties  were  led  to  believe  they  were  abandoned.  There  is  no 
rule  more  necessary  to  enforce  good  faith  than  that  which  com- 
pels a  person  to  abstain  from  enforcing  claims  which  he  has 
induced  others  to  suppose  he  would  not  rely  on.  The  rule  does 
not  rest  on  the  assumption  that  he  has  obtained  any  personal  gain 
or  advantage,  but  on  the  fact  that  he  has  induced  others  to  act  in 
such  a  manner  that  they  will  be  seriously  prejudiced  if  he  is 
allowed  to  fail  in  carrjnng  out  what  he  has  encouraged  them  to 
expect."  Cooley,  Justice,  was  inclined  to  doubt  the  sufficiency  of 
the  proof,  but  said  finally  :  "His,"  the  mortgagee's,  "assurances 
have  undoubtedly  been  relied  upon  and  acted  upon  by  the  defend- 
ants, and  conside]-ing  the  great  lapse  of  time  without  any  claim 
under  the  mortgages  on  the  part  of  the  complainant,  I  am  not 
disposed  to  dissent  from  the  conclusion  of  my  brethren."  The 
case  before  us  arose  also  in  Michigan.  In  Evans  v.  Snyder,^  the 
heirs  assailed  an  administrator's  sale.  No  order  of  sale  could  be 
found.  This  was  held  to  be  a  fatal  defect.  But  the  supreme 
court  of  the  state  held  "  that  where  they  stand  silently  by  for 
years,  while  the  occupant  is  making  valual)le  and  lasting  improve- 
ments on  the  property,  and  redeeming  it  from  the  lien  of  the 
ancestor's  debts,  his  heirs  will  be  estopped  from  afterwards  assert- 
ing their  claim." 

"  Other  authorities  to  the  same  effect  are  very   numerous. 

'  25  Mich.  80.  ^  64  Mo.  516. 

2  24  Mich.  117. 


1060  Affecting  Title  to  Land. 

Thoy  may  be  readily  found.     It  is  unnecessary  to  extend  this 
opinion  by  referring  to  them." 

"  "We  think  the  facts  disclosed  in  the  record  make  a  complete 
case  of  estoppel  in  _pais.^^' 

§  935.  Equity  has  long-  held  that  the  statute  shall  not  be  used 
as  a  cloak  for  that  which  it  was  designed  to  suppress,  and  where 
a  parol  agreement  has  been  so  far  executed  that  it  cannot  be 
rescinded  without  an  actual  or  constructive  fraud  on  the  pur- 
chaser, it  will  be  specifically  enforced  against  the  vendor  ;  and  a 
man  who  stands  by  and  encourages,  or  even  acquiesces  in  the 
sale  of  land  whicli  is  his  own,  as  the  property  of  another,  will  be 
restrained  fi'om  disputing  the  title  of  the  purchaser,  or  even  com- 
pelled to  perfect  it  by  conveying  the  estate  to  such  ])urchaser. 
Tiie  original  source  of  relief,  under  such  circumstances,  Avas  in 
courts  of  equity,  l^ut  it  is  now  also  granted  in  the  form  of  an 
equitable  estoppel  at  law.  The  questions  involved  in  the  applica- 
tion of  equitable  estoppels,  to  real  estate,  is  one  that  is  both  diffi- 
cult and  important  :  while  it  is  generally  true  that  a  parol  agree- 
ment cannot  be  binding  upon  the  title  to  real  estate,  without  an 
apparent  violation  of  the  statute  of  frauds,  Mdiich  require  a  writ- 
ing, when  the  realty  is  in  question  ;  it  is  also  a  well  established 
piinciple  of  equity  that  the  statute  shall  not  be  used  as  a  means  of 
effecting  the  fraud  which  it  was  the  object  of  the  statute  to  pre- 
vent, ai)d  withdraw  every  case  not  within  its  spiiitfrom  the  rigor 
of  its  letter,  if  it  can  be  done  without  violating  the  general  policy 
of  the  statute,  and  creating  the  uncertainty  which  it  was  meant 
to  obviate.  It  is  a  well  established  principle  of  equity,  that  part 
performance  of  a  parol  agreenient  or  contract  will  take  a  verbal 
sale  of  land  out  of  the  statute  of  frauds,  and  when  a  verbal  sale 
is  made,  accompanied  by  possession  of  the  estate,  equity  will 
compel  the  vendor  to  make  a  conveyance.  ^  So  that  an  estate  in 
land  may  be  transferred  fi'om  one  man  to  another,  .  without  a 
writing,  and  this  j)rin(;iple  is  applicable  to  those  cases  where  the 
owner  fails  to  give  notice  of  his  title  to  the  purchaser,  when  the 
circumstancch  ai'e  such  as  to  make  it  iiis  duty  to  do  so,  and  while 
a  title  does  not  actually  puss,  a  court  of  equity  will  decree  a  con- 

'  Dickerson  v.  Colgrove,  100  U.  S.  578. 


Equitable  Estoppel.  1061 

veyance.'  So  that  it  may  be  considered  as  a  well  settled  prin- 
ciple that  the  title  of  real  estate  may  be  barred  by  matter  in iiais, 
withont  reference  to  the  statute  of  frauds.* 

§  936,  The  statutory  provision,  which  renders  a  writing  neces- 
sary for  the  creation  of  an  estate  in  land,  is  not  dispensed  with 
either  at  law  or  equity  unless  on  the  ground  of  actual  or  construc- 
tive fraud.  A  party  who  relies  on  a  verbal  contract  and  thus 
dispenses  with  the  conclusiveness  of  written  evidence,  should  not 
be  allowed  to  have  or  receive  the  benefits  of  equitable  estoppels 
to  repair  his  negligence.^  The  retraction  of  a  promise  on  which 
another  has  acted  is  regarded  as  a  constrnctive  fraud  which 
warrants  the  intervention  of  equity  or  a  resort  to  the  aid  of  an 
estoppel  at  law.  Though  there  may  have  been  no  concealment 
or  misrepresentation,  and  the  only  ground  of  the  relief  is  the 
breach  of  the  promise.^  So  a  parol  promise  by  a  father  to  con- 
vey to  his  son  a  piece  of  land,  if  the  son  would  erect  a  house 
thereon,  having  been  acted  upon,  estops  the  father  from  asserting 
ownership  as  against  the  son.^  But  where  men  rely  on  the  honor 
of  those  with  whom  they  are  dealing  instead  of  using  the  means 
recognized  by  law,  the  law  leaves  them  to  suffer  from  the  results 
of  their  undue  confidence  and  discretion  ;  but  where  a  party 
entered  upon  land  in  consequence  of  a  parol  agreement  of  the 
owner  to  exchange  for  other  lands,  made  improvements  with  the 
knowledge  of  the  owner,  the  owner  cannot  take  advantage  of  the 
want  of  a  contract  that  would  bind  him  to  convey.  Tims,  where 
a  father,  in  consideration  of  services  performed  by  his  son, 
verbally  promises  and  agrees  to  convey  to  him  certain  lands,  and 
on  the  faith  thereof  the  son  takes  possession  of  and  makes  valu- 
able improvements  on  the  land,  the  father,  his  heirs  and  devisees 

'  Eunlet  V.  Otis,  2  N.  H.  167;  Wen-  Hayes  v.  Livingstoue,  34  Mich.  384; 

dell  V.  Van  Rensselaer,  1  Johns.  Ch.  Brewer  v.  R.  R.  Co.,  5  Met.  571;  Dele- 

341;  Wells  V.  Pierce,  27  K  H.  303.  plainc  v.  Hitchcock,  6  Hill,  17;  Foster 

-  R.  K.  Co.  V.  Ragsdale,  54    Miss.  v.  Redington,  21  N.  H.  291;  Wilton  v. 

200;  Walldns  v.  Peck,  13  N.  H.  360;  Harwood,  23  Me.    131;  Burnham   v. 

Corbelt  V.  Norcross,  35  K  II.  99.  Harwood,  24  N.  H.  570. 

•'Bnrke    v.    Brewer,    2    Met.    421;  *  McAflferty  v.  Conover,  7  Ohio  St. 

Baicheider  v.  Sanborn,  24  N.  H.  474;  99;  Ford  v.  Ellingwood,  3  Met.  (Ky.) 

McAfferly  v.  Conover,  7  Ohio  St.  99;  359. 

Miller    v.    McManice,    57     III.    126;  *  Campbell  v.  Mayes,  38  la.  9. 
Conover  v.  Stilweli,  34  JST.  J.  L.  54; 


1062 


Affecting  Title  lo  Land. 


will  be  estopped  from  denying  his  title,  and  a  specific  perform- 
ance of  the  agreement  will  be  decreed  against  them.'  A  party 
by  whose  encouragement  expenditures  liave  been  made  to  such 
an  extent  as  to  be  incapable  of  reinbursement  except  by  enjoyment, 
will  bo  enjoined  from  disturbing  the  possession  ;  he  is  estopped  , 
because  he  would  wrong  the  party  by  withdrawing  his  consent." 
But  a  parol  estoppel  cannot  operate  to  transfer  the  legal  title  to 
land.' 

§  937.  In  addition  to  the  fundamental  legal  principle  of  law, 
nuUus  commodum  capere  jjoted  de  injuria  sua  propria^  as  one 
of  the  essential  elements  of  an  equitable  estoppel,  in  regard  to 
its  application  to  title  to  land,  there  is  one  which  applies  still 
more  forcibly,  viz  :  Qui  tacit  consentire  videtur  and  Qui  potent 
et  debet  vetare,  juhet. — He  who  is  silent  when  conscience  requires 
him  to  speak,  shall  be  debarred  from  speaking  when  conscience 
requires  him  to  keep  silent."  No  estoppel  can  be  created  by  mere 
silence  or  acquiescence,  unless  there  are  some  special  circumstan- 
ces which  make  it  necessary  to  speak.''    When  such  are  the  cir- 


'  Peters  v.  Jones,  35  Iowa,  513. 

'  Improvement  Co.'s  Appeal,  54  Pa. 
St.  361 ;  Schnee  v.  Scbnee,  23  Wis. 
377;  East  v.  Dolibite,  73  N.  C.  563; 
Trenton  v.  McKelway,  8  N.  J.  E.  84: 
Ferry  Co.  v.  Dodge  Co.,  6  Neb.  18. 

3  Barker  v.  Bell,  37  Ala.  359;  Mc- 
Pberson  v.  Walter.s,  16  Ala.  714. 

*  Bank  v.  Lee,  13  Pet.  107;  Bank  v. 
Bank,  10  Wall.  604;  Baker  v.  Pratt, 
15  111.  568;  Morgan  v.  R.  R.,  96  U.  S. 
716;  People  v.  Brown,  67  111.  435; 
Broyles  v.  Nowlin,  59  Tenn.  191; 
Manf.  Co.  v.  Parsell,  38  Micb.  475; 
Kuoebel  v.  Kircber,  36  111.  308j  East 
India  Co.  v.  Vincent,  3  Atk.  83;  lluns- 
dcn  V.  Cbeney,  3Vern.  150;  Storrs  v. 
Barker,  6  Jobns.  Cb.  166;  Bright  v. 
Boyd,  1  Story,  178;  Smitbv.  Newton, 
38  111.  310;  Day  v.  Caton.  119  Mass. 
513;  Jackson  v.  Cator,  5  Ves.  688; 
Bank  v.  Bowen,  80  III.  541;  Preston 
V.  Linen  Co.,  119  Mass.  400;  Dann  v. 
Sparrier,  7  Ves.  331 ;  Higgins  v.  Fer- 
guson, 14  III.  269;  Styles  V.  Cowper, 
3  Atk.  692;  Morgan  v.  Evans,  3  CI.  & 


F.  205;  Burke  v.  Prior.  15  Ir.  Ch. 
106;  Belknap  v.  ^iviu,  2  Jobus.  573; 
Viele  V.  Jud.son,  83  N.  Y.32;  Bram- 
ble V.  Kingsbury.  39  Ark.  131 ;  Kirk 
V.  Hamilton,  103  U.  S.  08;  Ross  v. 
Tbompson,  78  Ind.  90;  Mastersou  v. 
R.  R.,  73  Mo.  343;  Scbaefer  v.  Glid- 
den,  3  Col.  315:  Mtiiice}'  v.  Joest,  74 
Ind.  409:  Wendell  v.  Van  Rensselaer, 
1  John.  Cb.  354;  JMorford  v.  Bliss.  12 
B.  Mon.  255;  Stale  v.  Jersey  Cily,  40 
N.  J.  L.  483  ;  Gbeen  v.  Osborne,  11 
Heisk.  61  ;  McKellop  v.  Jackman,  50 
Vt.  71  ;  McLean  v.  Dow,  43  Wis.  610  ; 
Collier  v.  Pfenning.  34  N.  J.  E.  22 ; 
Raley  v.  Williams,  73  Mo.  310;  Wea- 
ver V.  Listz.  103  Pa.  St.  593;  Cham- 
plin  V.  Stoddart,  30  Hun,  300;  Kobbe, 
in  re,  10  Daly.  42  ;  Kelly  v.Wagner,  61 
Miss.  2U9  ;  Refining  Co.  v.  Green,  4 
McCrary,  433. 

'  Taylor  v.  Ely,  25  Conn.  250;  Cla- 
baugb  V.  Byeriy,  7  Gill,  354;  Hill  v. 
Eply,  31  Pa.  St.  331;  Strong  v.  Ells- 
worth, 26  Vt.  366. 


Equitable  Estoppel. 


1003 


cumstances,  equity  unhesitatiiii^ly  applies  the  maxim,  Qui  tacit 
consentire  videtur.  If  he  who  ought  to  have  exphiined  himself 
clearly  and  phiinly,  has  not  done  it  when  the  occasion  required 
and  opportunity  was  presented  to  liim,  he  is  not  allowed  to  in- 
troduce subsequent  restrictions  which  he  did  not  at  the  proper 
time  express.' 

§  938.  A  man  raay  by  mere  silence,  without  active  conceal- 
ment, produce  a  false  impression  on  the  mind  of  another.  Al'iud 
est  celare^  aliud  tacere  •  neque  enim  id  est  celare,  quic  quid 
reticeas  I  sed  mmi,  quod  tu  seias,  id  ignorare,  emolument i  tai 
causa,  velis  cos  quorum  intersit  id  scire.  Thus,  where  a  part\' 
negligently  and  culpably  stands  by  and  allows  another  to  contract 
on  the  faith  of  an  understanding  which  he  can  contradict,  he  is 
afterwards  estopped  from  disputing  the  facts  in  an  action  against 
the  person  whom  he  has  assisted  in  deceiving,^  upon  the  princi-ple, 
that  between  innocent  parties,  he  who  causes  the  injury  must 
suffer.'   Qui  non prohihit  quod ])rohil>cre  j>otest  assentirevidetiir, 


1  Mitrhell  v.  Mount,  31  N.  Y.  356; 
Corkhill  v.  Landers,  44  Barb.  218; 
Sheppard  v.  Shai-pe,  4  L.  T.  270; 
Davies  v.  Davies,  6  Jur.  N.  S.  1322; 
Alvord  V.  U.  S.,8  Ct.  of  CI.  304;  Brin- 
keihoff  V.  B'inkerboff,  23  N.  J.  E. 
477;  X:\-iu   v.  Belknap,  2  Johns.  573. 

"^  Hollingswortli  v.  Hancock,  7  Fla. 
838;  Donovan  v.  Ins.  Co.,  30  Md. 
155;  Nunn  v.  Fabian,  11  Jur.  N.  S. 
868;  Thornton  v.  Ramsden,  4  Giff. 
519;  Crook  V.  Corporation,  L.  R.  10 
Eq.  678;  Strand  v.  Music  Co.,  14  W. 
R.  6;  Hill  V.  R.  R.  Co.,  11  Jur.  N.  S. 
192;  Wilson  v.  West,  &c.  Co.,  11  Jur. 
N.  S.  124;  Stevens  v.  Dyas,  15  Ir.  Ch. 
405;  Davis  v.  Sear,  L.  R.  7  Eq.  427; 
Bankart  v.  Tenant,  L.  R.  10  Eq.  141; 
Raritan,  &c.  Co.  v.  Yeghte,  21  N.  J. 
E.  463.  Evansvillev.  Pfisterer.  34  Ind. 
76;  Brooks  v.  Curtis,  4  Lans.  283; 
Teasdale  v.  Teasdale,  Sel.  Cas.  Cli. 
59;  Hunsden  v.  Cheyney,  2  Vern.  150; 
Savage  v.  Foster,  9  Mod.  36;  Berris- 
ford  v.  Milward,  2  Atk.  49;  Raw  v. 
Pote,  2  Vern.  239;  Beckett  v.  Cordly, 


1  Bro.  C.  C.  357;  Govett  v.  Richmond, 
7  Sim.  1 ;  Draper  v.  Borlace,  2  Vern. 
370;  Brown  v.  Thorpe,  11  L.  J.  Ch. 
73;  Boyd  v.  Bolton,  1  J.  «&  L.  730; 
Ibbotson  V.  Rhodes,  2  Vern.  554; 
]S'icholsou  V.  Hooper,  4  M.  &  C.  172; 
Thompson  v.  Simpson,  2  J.  &  L.  110; 
Ziiletta  V.  Tyrie,  15  Beav.  591;  Man- 
gles v.  Dickson,  3  H.  L.  739;  Olover 
V.  King.  8  D.  M.  &  G.  110;  Davies  v. 
Davies,  6  Jur.  N.  S.  1322;  Upton  v. 
Vanner,  1  B.  &  S.  594;  Cooper  v. 
Gunn,  L.  R.  2  Ch.  App.  282;  Lee  v. 
Porter,  6  Johns.  Ch.  268:  Eagle  v. 
Burns,  5  Cal.  403;  Harrison  v.  Ed- 
wards, 8  Litt.  310;  Allen  v.  Winston, 
1  Rand.  65;  Skirving  v.  Neufville,  2 
Dess.  194;  Lassalle  v.  Barnett,  1 
Blackf.  130;  Dickenson  v.  Davis,  2 
Leigh,  401;  Thompson  v.  Sanborn,  11 
N.  H.  201 ;  Morland  v.  Bliss,  12  B. 
Mon.  255;  Gottschalk  v.  De  Santos,12 
La.  An.  473. 

3  Milliugar  v.  Sorg,  61  Pa.  St.  471; 
Hertel  v.  Bogert,  9  Paige,  52; 
Rawls  v.  Deshler,  4  Abb.   App.  Dec. 


1()G4 


Affkctixg   Titlk  to  Land. 


is  also  oue  of  tlie  fundamental  maxims  and  mlcs  of  law  particu- 
larly a])i)lical)lo  to  this  branch  of  estoppels,  especially  those  acts 
uhich,  in  equity,  and  to  a  great  extent  in  law,  are  regarded  as 
the  foundation  of  the  estoppel  which  is  created  by  the  silence, 
acquiescence,  or  consent  of  the  owner  of  real  or  personal  property, 
in  its  disposal  to  a  stranger  by  one  not  having  the  title,  but  whom, 
if  allowed  to  set  up  his  claim  of  title  or  ownership  to  the  prop- 
erty after  its  purchase  by  a  stranger,  would  be  perpetrating  a 
gross  fraud  upon  the  party  whom  he,  by  his  acquiescence,  silence, 
and  consent,  has  n)islcd.  "lie  who  can  forbid,  but  does  not,  is 
deemed  to  have  assented."  The  law  will  not  permit  a  man  to 
say  what  he  has  said  and  done  as  a  solemn  act,  by  which  others 
have  acfpiired  rights,  was  not  true;  nor  will  it  allow  one  who 
has,  in  a  like  solemn  manner,  admitted  a  matter  to  be  true,  to 
allege  it  to  be  false.' 

§  939.  A  person  who  himself  being  the  owner  of  property  or 
Laving  an  interest  in,  or  claim  upon  it,  stands  by  and  sees  another 
sell  it,  as  his  own,  without  objection,  will  not  be  allowed  after- 
wards to  assert  his  title.  His  silence,  when  in  good  conscience 
he  ought  to   s])eak,  shall  close  his  month  when  he  would  speak." 


12;  R.  R  Co.  V.  Potter,  42  Vt.  205; 
Curtis  V.  Tripp,  1  Iowa,  318;  Cbap- 
maa  v.  Hamilton,  19  Ala.  121;  Hcr- 
rick  V.  At  wood,  2  De  G.  &  J.  21; 
Ililey  V.  Quigley,  50111.804;  Brinker- 
lioff  V.  Lansing,  4  Johns.  Ch.  65;  Lee 
V.  Munroe,  7  Crancli,  366;  Thorne  v. 
Mosher,  20  N.  J.  E.  257;  Scbnee  v. 
Sohnee.  23  Wis.  377;  Neville  v.  Wil 
kinsou,  1  Bio.  Ch.  546;  Scott  v.  Scott, 
1  Cox.  378;  Evans  v.  Bicknell,  G  Ves. 
173;  R'jiison  v.  Morgan.  2  Bro.  Ch. 
388;  Dixon  v.  Green,  24  Miss.  612; 
Blount  V.  Robeson,  3  Jones  Eq.  731. 
•  Ham  V.  Ham,  14  Me  351;  Hicks 
V.  Cram,  17  Vt.  449;  Bank  v.  Wollas- 
ton,  3  llariing.  90;  Chapman  v. Chap- 
man, 59  Pa.  St.  214;  Halloran  v.  Whit- 
comb,  43  Vt.  306;  Wiuchell  v.  Ed- 
wards, 57111.  41;  Sweezey  v.  Collins, 
40  Iowa,  540;  Trobiidge  v.  Mathews, 
28  Wis.  650;  Dean  v.  Martin,  24  La. 
An,  lOi':  ]MiI,er  v.  Springer,    70  Pa. 


St.  269;  Davidson  v.  Silliman,  24  La, 
An.  225;  Leeper  v.  Hersmau,  58  111. 
218. 

■•'Bank  v.  White,  6  Barb.  589; 
Marshall  v.  Pierce,  12  N.  H.  127; 
Storrs  V.  Barker,  1  Johns.  Ch.  166; 
Brotheis  v.  Porter,  6  B.  Mon.  106; 
Thompson  v.  Sanborn,  11  N.  H.  201; 
Langdon  v.  Dond,  10  Allen,  437; 
Davis  v.  Tingle,  8  B.  Mon.  539;  ]\Iorse 
V.  Child,  0  N.  H.  521;  WendeU  v.  Van 
Rensselaer,  1  Johns.  Ch.  354;  Hatch 
y.  Kimball,  16 Me.  146;  Heard  v.  Hall, 
16  Pick.  487;  Marston  v.  Brackett,  9 
N.  H.  336;  Miller  v.  Miller,  60  Pa.  St. 
116;  Evans  v.  Bicknell,  CO  Ves.  174; 
Watkins  v.  Peck,  13  N.  II.  360; 
Shapely  v.  Raugely,  1  W.  &  M.  213; 
Fay  V.  Valentine,  12  Pick.  40;  Bank 
v.  Biiflinglou,  97  Mass.  408;  Hutton  v. 
Rossiter,  7  De  G.  M.  »fe  G.  9;  Parker 
V.  Brown,  15  N.  II.  184;  Brinkerhofl 
V.  Lansing,  4  Johns.  Ch.  65;  Gray  v. 


Equitable  Estoppel. 


10G5 


If  one  having  a  title  to  land  looks  on  and  suii'ers  another  to  pur- 
chase and  expend  money  on  the  land,  without  making  known 
his  claim,  he  will  not  be  permitted  afterwards  to  assei't  his  title 
against  an  innocent  purchaser.' 

§  940.  The  application  of  this  doctrine  may  be  illustrated  in 
the  following  cases:  Where  A.  erected  one  wall  of  an  expensive 
building  upon  land  to  which  he  l)elieved  he  had  good  title,  but 
which  was  really  owned  by  B.,  and  B.,  with  full  knowledge  of 
the  fact  that  said  wall  was  being  erected,  failed  to  claim  any 
interest  in  the  land  or  make  any  objection  to  the  erection  of  said 
wall  thereon  ;  lield,  that  he  was  thereafter  estopped  to  claim  title 


Biirtlett,  20  Pick.  18G;  Foster  v.  Biggs, 
3  Mass.  313;  Casey  v.  Inlocs,  1  Gill, 
430;  Piatt  v.  Squire,  13  Met.  494; 
Skiimer  v.  Strousc,  4  Mo.  93;  Auden- 
ried  v.  Bettel}-,  5  Allen,  384;  Ileuder- 
soii  V.  OvtM'tou,  2  Yerg.  399;  CopeliUKl 
V.  Copeland,  28  Me.  525;  Plumer  v. 
Lord,  9  Allen,  455;  Ridgeway  v. 
Morrison,  28  Ind.  201;  Brown  v. 
WLeeler,  17  Conn.  345;  Andrews  v. 
Lyon,  11  Allen,  349;  CorncHus  v. 
Bnford,  28  Tex.  202:  Foster  v. 
Bigelow,  24  Iowa.  379;  Turner  v. 
Coffin.  12  Allen,  401;  Irwin  v.  Moore, 
Dud.  (Ga.)  72;  Maple  v.  Kussart,  53 
Pa.  St.  348;  Tiiayer  v.  Bacon,  3 
Allen,  165;  Mahoucy  v.  Horan,  53 
Barb.  29;  Meason  v.  Kaine,  67  Pa.  St. 
126;  Gregg  v.  Wells,  10  A.  &  E.  90; 
Gerhard  v.  Bates,  2  Q.  B.  476;  Hol- 
royd  V.  Marshall,  2  De  G.  F.  &  J. 
596;  Warden  v.  Cornell,  105  111.  169; 
Bramble  v.  Kingsbury,  39  Ark.  131; 
aicBane  v.  Wilson,  8  F.  R.  734;  Sarah 
Ann,  The,  2  Sumn.  206;  Weaver  v. 
Listz,  102  Pa.  St.  593;  Kobbe,  in  re, 
10  Daly,  42  ;  Kelly  v.  Wagner,  61 
Miss.  299;  Refining  Co.  v.  Green,  4 
McCrary,  332. 

'  Ross  V.  Thompson,  78  Ind.  90; 
Munsey  v.  Joest,  74  Ind.  409;  Master- 
son  V.  R.  R.  Co.,  72  Mo.  342;  R.  R. 
Co.  V.  Hamilton,  59  Ga.  171;  Kirk  v. 
Hamilton,  102   U.    S.    68;  Schufer  v. 


Glidden,  3 Col.  15;  Eldridge  v. Walker, 
80  111.  270;  Piyzbylowicz  v.  R.  R.  Co., 

14  F.  R.  492;  Sleeper  v.  BulU^n,  6  Kas. 
300;  Knaggs  v.  Mastin,  9  Kas.  532; 
Bank  v.  R^oop,  84  N.'Y.  292;  Guil- 
beau  V.  Mayo,  15  Tex.  410;  Sn^elting 
Co.  v.  Green,  13  F.  R.  208;  Iverson  v. 
Saulsbury,  65  Ga.  725;  Moffitt  v. 
Adams,  60  Iowa,  44;  Dolterer  v.  Pike, 
60  Ga.  29;  Walker  v.  Flint,  3  McCrary, 
507;  Dickerson  v.  Colgrove,  100  U.  S. 
578;  Trapnall  v.  Burton,  24  Ark.  371; 
Mills  V.  Graves,  38  111.  455;  Cady  v. 
Owens,  34  Vt.  598;  Berry  v.  Ander- 
son, 22  Ind.  36;  Verdier  v.  R.  R.  Co., 

15  S.  C.  476;  Riley  v.  C^uigley,  50  111. 
304;  Dellett  v.  Kemble,  23  N.  J.  E. 
758;  Sasser  v.  Jones,  3  Ired.  Eq.  19; 
Madison  v.  Young,  24  N.  .J.  E.  535; 
Light  V.  Howe,  6  Esp.  20;  Fisher  v. 
Magnay.  5  M.  &  G.  778;  Stroud  v. 
Stroud,  7  M.  &  G.  417;  Doe  v.  Groves, 

16  L.  J.  Q.  B.  297;  Carncross  v. 
Lorimer,  3  Macq.  827;  Ins.  Co.,  in  re, 
L.  R.  19  Eq.  302;  Prendergast  v. 
Turton,  1  Y.  &  C.  C.  C.  98;  Norway 
v.  Rowe,  19  Ves.  144;  Peel's  Case,  L. 
R.  2  Ch.  App.  674;  Evans  v.  Small - 
combe,  L.  R.  3  H.  L.  249;  Sandys  v. 
Hodgson,  10  A.  &  E.  476;  Ford,  in  re, 
1  L.  R.  I.  Ch.  D.  521;  McKeuzie  v. 
Linen  Co.,  L.  R.  6  App.  Cas.  82;  East 
&c.  Co.  V.  Vincent,  2  Atk.  82 
Troughton     v.     Gitley,     Amb.     630 


1066  Affecting  Title  to  Land. 

to  the  fi^round  njioii  which  the  w;ill  stood.'  Beneficiaries  of 
trust  property  sold  under  an  invalid  order  of  the  chancellor,  who 
for  years  liave  seen  tlic  purchasers  erecting  valuable  improve- 
ments thereon  without  objection,  are  estopped  from  setting  up 
title  thereto.* 

If  the  owner  of  an  estate  stands  by  and  sees  another  erect 
improvements  on  the  estate,  in  the  belief  that  he  has  the  right 
to  do  so,  and  does  not  interpose  to  prevent  the  work,  he  will  not 
be  permitted  to  claim  such  improv>5ments  after  they  are  erected.' 
Although  a  deed,  absolute  in  form,  may  have  been  given  as  a 
mortgage,  to  secure  an  indebtedness  of  the  grantor,  yet  when  the 
grantor,  in  his  answer  to  a  bill  in  chancery,  sets  up,  that  he  had 
conveyed  the  absolute  title,  and  he,  and  his  assignee  in  bankruptcy 
afterwards  stand  by  and  permit  the  grantee,  without  a  word  of 
di.'^sent,  to  claim,  mortgage  and  contract  for  the  improvement 
and  leasing  of  the  property  for  a  term  of  years,  as  the  absolute 
owner,  any  person  not  liaving  actual  notice  to  the  conti-ary  will 
have  the  right  to  suppose  such  grantee  the  absolute  owner,  and 
in  dealing  with  him  as  such,  he  ouglit  to  be  pi'otected  in  the  pur- 
chase of  the  propei'ty.^  A  prior  purchaser  is  estopped  from  assert- 
ing his  title,  where,  to  the  inquiry  of  such  subsequent  purchaser, 
whom  he  knew  to  be  bargaining  with  the  original  owner  for  its 
purchase,  he  denies  all  interest  in  it.  A  judgment  creditor  of 
tlie  prior  purchaser,  who  nrged  such  subsequent  purchaser  to 
purchase,  stating  that  the  title  was  clear,  is  also  estopped.^ 

If  one  stands  by  silently,  when  he  should  assert  his  claim,  and 
hy  tJittt^  induces  a  purchaser  to  believe  that  he  has  none,  he  will 
be  estopped,  but  a  mere  knowledge  that  one  is  about  to  purchase 
does  not  of  itself  impose  upon  the  owner  of  an  equity  the  duty 
of  seeking  him  out  and  advising  him  against  it.'' 

§  GiOa.  Where  a  purchaser  of  land  thirty  years  before  filing 
his  bill  for  a  specific  performance,  not  having  made  any  payments 

Cowell   V.    Watis,   19   L.  J.  Cb.  455;  ^  Smelting    Co.   v.   Green,   13  Fed. 

JSheiidan   v.    Barrett.  4  L.  R.  Ir.  2'2;};  Rep.  208. 

Euglcback  v.   Ni-\on,   L.  R.  10  C.  P.  ^  Jenkins  v.  Rosenberg,  105  111.  157. 

645.  6  McBane   v.   Wilson,  8  Fed.  Rep. 

'  Walker  v.  Flint,  3  McCrary,  .107.  734. 

a  Iversou  v.  Saulsbury,  Go  Ga.  725;  "  Bramble   v.    Kingsbury,   39  Ark. 

Dolterer  v.  Pike,  60  Ga.  29.  131. 


Equitable  Estoppel.  1067 

foi-  the  same,  stands  bj  and  sees  others  who  have  bought  and  paid 
for  the  land,  make  valuable  and  costly  improvements  thereon,  and 
allows  others  to  purchase,  making  no  objections,  and  interposing 
no  claim  to  the  property,  during  all  which  time  he  pays  no  taxes 
or  assessments  on  the  same,  and  takes  no  legal  steps  to  assert  his 
supposed  rights,  and  does  not  call  on  those  occupying  the  same 
and  assert  his  ownership,  or  call  for  an  account  of  the  rents  and 
profits,  and  in  his  bill  gives  no  excuse  for  his  delay  and  conduct, 
he  will  not  be  entitled  to  equitable  relief,  and  his  bill  will  be 
properly  dismissed.  Subsequent  purchasers  of  land,  in  the 
absence  of  express  notice  of  latent  equities  in  another  than  their 
grantors,  can  only  be  affected  by  such  legal  consequences  as  may 
be  fairly  drawn  from  the  record  itself ;  and  when  such  records 
show  that  the  claim  of  a  prior  purchaser  has  been  cut  off  and 
defeated  by  a  sale  or  foreclosure,  or  by  a  forfeiture  of  his  contract, 
or  of  the  contract  of  his  vendor,  such  subsequent  purchasers  will 
have  the  right  to  rely  on  what  is  thus  disclosed.' 

§  941.  Where  on  special  execution  the  sheriff  (defendant)  sold 
a  quarter  section  of  land  belonging  to  plaintiffs,  forty  acres  of 
which  was  their  homestead,  and,  after  satisfying  the  special  exe- 
cution, he  in  good  faith,  without  notice,  claim,  objection,  or 
direction  by  plaintiffs,  to  the  contrary,  applied  the  surplus  on 
other  executions  in  his  hands,  held^  that  by  thus  standing  by,  and 
allowing  the  sheriff  to  so  appropriate  and  pay  over  the  surplus, 
plaintiffs  must  be  regarded  as  having  abandoned  all  claim  to  their 
homestead  rights,  if  any  they  had,  in  the  surplus,  and  cannot  now 
recover  such  surplus  from  the  sheriff.^  One  who  stands  by  and 
encourages  a  stranger  to  purchase  property  offered  for  sale  under 
foreclosure  of  a  chattel  mortgage,  cannot  afterwards  be  heard  to 
claim,  as  against  such  stranger,  that  he  had  at  the  time  of  such 
sale  a  paramount  claim  on  the  property  purchased,  no  matter 
what  the  nature  of  such  claim  may  be.'  An  execution  debtor 
who  stands  by  while  the  sheriff  levies  an  execution  on  his  exempt 
property,  and  does  not  then  and  there  in  some  manner  indicate  to 
the  officer  his  purpose  to  claim  the  property  as  exempt,  is  estopped 

>  Warder  v.  Cornell,  105  111.  169.  384. 

«  Brumbaugh  v.  Zollinger,  59  Iowa,         *  Miles  v.  Lefi,  GO  Iowa,  168. 


IOCS  Affecting  Title  to  Land. 

to  assert  such  claim  in  a  replevin  suit  afterwards  brought  against 
the  officer  to  recover  tlie  possession  of  the  property.' 

§  942.  A  husband  cannot  disavow  a  sale  by  the  wife  of  articles 
of  personal  property,  made  with  his  knowledge,  after  standing  by 
and  seeing  the  wife  use  the  proceeds  derived  from  the  sale.'     A 
party  who  has  observed,  without  objection,  the  construction  of  a 
ditch,  has  no  ground  for  claiming  an  injunction  against  the  same 
for  the  reason  that  proper  notice  of  the  letting  of  the  contract 
M'as  not  given.'     A  party  who  has  stood  by  and,  without  objec- 
tion, seen  a  building  progress  to  completion  not  in  strict  accord- 
ance with  the  plan,  is  precluded  from  charging  to  the  builder  the 
cost  of  reconstruction."     Where  it  appeared,  that  plaintiff  knew 
that  defendants  claimed  the  property  under  a  sale   nuide  in  an 
equity  suit  to  which  he  was  an  original  party  ;  that,  instead  of 
taking  steps  to  have  such  sale  set  aside  as  a  nullity,  he,  with  full 
knowledge  of  all  the  facts  appeared  before  an  auditoi*  and  disputed 
the  right  of  certain  creditors  to  be  paid  out  of  the  fund  which  had 
been   raised  by  such  sale,  but  without  raising  any  question  as  to 
its  validity  ;  that,  knowing  that  defendants'  claim  rested  on  such 
sale,  he  remained  silent  while  they  expended  large  sums  in  their 
improvement,  and,  in  effect,   disclaimed   title  in   himself.     The 
doctrine  of  equitable  estoppel  would  apply  in  favor  of  defend- 
ants.^    Where  the  owner  of  land  through  M'hich  a  way  runs,  sees 
another  nuiking  costly  improvements  thereon  without  objection, 
he  is  estopped  to  deny  that  the  way  is  public."     It  is  inequitable 
to  permit  a  mortgagee  to  lie  by  after  the  default  of  the  mortgagor, 
and  see  a  valuable  and  costly  improvement  erected  on  the  mort- 
gaged premises  by  a  third  party,  in  good  faith,  under  a  license 
from  the  owner  of  the  land,  making  no  objection  whatever,  and 
when  the  structure  is  completed  deprive  such  party  of  its  enjoy- 
ment.    In  such  case,  the  license  of  the  owner  should  be  held  to 
be  that  of  the  mortgagee  also.'     One  who  has  consented  to  the 
extension  of  a  ditch  whicli  does  not  cross  his  land,  and  has  prom- 
ised to  dig  his  part  and  tried  to  let  a  job  therefor,  cannot^after 

'  Moffitt  V.  Adams,  60  Iowa,  44.  ^  Kirk  v.  HMmilton,  102  U.  S.  68. 

«  Delano  V.  BlaiKhaid,  53   Vt.   578;  »  Rogg  y    Thompson,  78  Ind.  UO. 

Stewart  V.  Mix,  ;J0  La.  Ann.  1036.  '  Mastersou   v.  R.   R.  Co.,  72  Mo, 

3  :Muucey  v.  Joest,  74  Ind.  409.  342. 
*  Schaefer  v.  Gildea,  3  Col.  15. 


Equitable  Estoppel.  1069 

partial  constructiou  thereof  and  consequent  benefit  to  himself, 
comphiin  of  being  assessed.'  Thus,  where  the  postmaster-general 
has  the  legal  right  to  curtail  the  public  expenditure  by  discontinu- 
ing a  special  service,  and  distinctly  informs  a  contractor  that  he 
will  do  so,  if  a  disputed  claim  for  other  services  be  pressed,  then 
the  contractor  is  bound  in  equity  and  good  conscience  to  inform 
the  postmaster- general,  that  he  does  not  acquiesce  in  liis  decision. 
liis  silence  must  be  construed  to  have  been  intended  to  influence 
the  conduct  of  the  postmaster-general,  and  to  lead  him  into  a  line 
of  conduct  prejudicial  to  the  interests  of  the  government,  and  it 
constitutes  the  very  essence  of  an  estoppel  m  ■paisJ' 

§  943.  It  has  been  long  and  well  established  in  equity  and  is 
now  becoming  as  well  established  in  most  courts  of  law,  that 
every  one  wlio  encourages  or  stands  by  and  sanctions  the  acquisi- 
tion of  lands  by  another,  will  not  only  be  estopped  from  invalid- 
ating the  interest  tluis  acquired  by  the  subsequent  assertion  of 
any  title  which  lie  held  with  full  knowledge  at  the  time,  but  he 
Avili  be  compelled  to  make  a  conveyance  to  the  purchaser,  and 
neither  he  nor  his  privies  will  be  allowed  to  dispute  such  party's 
title. 

No  one  is  permitted  to  keep  silent  when  he  should  speak,  and 
thereby  mislead  another  to  his  injury.  A  party  who  culpably 
stands  by  and  allows  another  to  contract  on  the  faith  and  under- 
standing of  a  fact  which  he  can  contradict,  cannot  afterwards  dis- 
pute the  fact  in  an  action  against  the  person  whom  he  has  thus 
assisted  in  deceiving.  One  who  has  full  and  complete  knowledge 
of  the  facts,  cannot,  as  against  an  innocent  third  person,  subse- 
quently assert  that  he  was  ignorant  of  tlie  extent  of  the  legal 
rights  which  arise  out  of  the  facts  ;  where  there  is  a  full  knowl- 
edge of  the  facts,  a  pei'son  who  acts  in  good  faith  on  such  facts, 
as  they  are  known,  cannot  be  deprived  of  his  rights  upon  the 
ground  of  ignorance  of  the  full  extent  of  these  legal  rights  ;  it  is 
knowledge  of  the  facts  that  controls  in  such  cases.^ 

'  Mabee  v.  Miner,  45  Mich.  568.  v.  Burton,  24  Ark.  371;  Goddefroy  v. 

2  Alvord  V.  United  ISlates,  8  Ct.  of  Caldwell,    2    Cal.    489;    Brothers    v. 

CI.  364.  Porter,    6    B.    Mon.    106;    Bryau  v. 

^Shapely  v.   Rangely,  1  W.  »&   M.  Kamirez,  3  Cal.  461;  Rider  v.  Rubber 

213;  Reyburn  v.  Pry^'i".  1-^  -^^'k.  505;  Co.,  4  Bosw.  169;  Cheeney  v.  Arnold, 

Mills  V.  Graves,  38  lil.  455;  Trapnall  18  Barb.  435;  Snodgrass  v.  Ricketts, 


1070 


Affecting  Title  to  Land. 


§  944.  The  effect  of  an  estoppel  in  pain  is  to  prevent  the 
assertion  of  an  nneqnivocal  right,  or  preclude  a  good  defense,  and 
justice  demands  that  it  should  not  be  enforced  unless  substanti- 
ated in  ever}'  particular.  The  ground  upon  which  the  estoppel 
proceeds  is  fraud,  actual  or  constructive,  on  the  part  of  the  person 
sought  to  be  estopped.  AVhat  will  amount  to  the  suggestion  of 
a  falsehood    or  the    suppression  of  the  truth,  may  be  ditlicult  to 


13  Cal.  359;  Cady  v  Owen,  34  Vt. 
598;  Wbittington  v.  Wright,  9  Ga. 
23;  McDonald  v.  Liiidall,  2  Kawle, 
492;  Grace  v.  Mercer,  10  B.  Moii.  157; 
Galling  v.  Rodman,  6  Ind.  289;  Foster 
V.  Bigelow,  24  Iowa,  3'79;  Higginbot- 
bam  V.  Bin-uett,  5  .Johns.  Ch.  184^ 
Carr  v.  Wallace,  7  Watts,  494;  Woods 
v.AVilson,37Pa.  St.  379;  Patton  v.  Mc- 
Clurc,  1  M.  &  Y.  333;  Vilas  v.  Mason, 
25  Wis.  310;  Swains  v.  Seaman,  9 
Wall.  254;  Guthrie  v.  Quinn,  43  Ala. 
5G1;  Kiley  v.  Quigley,  50  111.  304; 
Chapman  v.  Chapman,  59  Pa.  St.  214; 
Crownover  v.  Itandle,  21  La.  Ann. 
4G9;  East.  &c.  Co.  v.  Vincent,  2  Atk. 
83;  Hanniug  v.  Ferrers,  1  Eq.  Cas. 
Abr.  356;  liaw  v.  Pote,  Prec.  in  Ch. 
35;  ilunsden  v.  Cheyney,  2  Vern.  150; 
Styles  V.  Cowper,  3  Alk.  692;  Jackson 
V.  Cator,  5  Ves.  688:  Dann  v.  Spar- 
rier,  7  Ves.  231 ;  Slorrs  v.  Barker,  6 
Johns.  Ch.  166;  Dyer  v.  Dyer,  2  Ch. 
Cas.  108;  llobbs  v.  Norton,  1  Vern. 
136;  Di.von  v.  Green,  24  Miss.  612; 
Goodin  v.  Cincinnati,  &c.  Co.,  18 
Ohio  St.  169;  Anderson  v.  Armistead, 
69  HI.  452;  Bank  v.  Roop,  48  N.  Y. 
292;  Mason  v.  Williams,  66  N.  C.  564; 
Rice  V.  Bunce,  49  ]Mo.  231 ;  Darnley 
V.  Rector,  10  Ark.  211  ;  Shall  v. 
Biscoe,  18  Ark.  142;  R.  R.  v.  R.  R., 
13  R.  1.  260;  Peabody  v.  Flint,  6 
Allen,  52;  Bank  v.  R.  R.  Co.,  125 
Mass.  490;  Mining  Co.,  in  re,  L.  R.  8 
Ch.  D.  273;  llogan  v.  Brooklyn,  52 
N.  Y.  282;  Baehr  v.  Wolf,  59  111.  470; 
Funk  V.  Newcomer,  10  Md.  301; 
Thomas  v.  Pullis,  56  Mo.  211;  Dixon 


V.  Green,  24  Miss.  612;  Banking  Co. 
V.  Duncan,  86  N.  Y.  22;  Brace  v.  Bar- 
clay, 10  B.  Mou.  261;  AVells  v.  Pierce, 
27  N.  II.  503  ;■  Willis  v.  Swartz,  28  Pa. 
St.  113;  Gregg  V.  Wells,  10  A.  cSsE.  90; 
IMorgan  v.  R.  R.,  96  U.  S.  716;  Breed- 
ing V.  Stamper,  18  B.  Mon.  175;  Hill 
V.  Epley,  31  Pa.  St.  334;  Parker  v. 
Brown,  15  N.  H.  184;  Thompson  v. 
Sanborn,  11  N.  H.  201;  Hill  v.  Gros- 
ser, 59  N.  H.  513;  Wendell  v.  Van 
Rensselaer,  1  Johns.  Ch.  344;  Park- 
hurst  V.  Van  Courtlandt,  14  Johns. 
41;  Kirk  v.  Hamilton,  102  U.  S.  68; 
Gregg  V.  Van  Pliul,  1  Wall.  274; 
R.  R.  Co.  V.  Hadpold,  19  Ind.  347; 
Corser  v.  Paul,  41  N.  H.  31;  Lippimus 
V.  McCramie,  30  La.  Ann.  1251; 
Youngblood  v.  Cunningham,  38  Ark. 
572;  Barns  v.  McKay,  7  Ind.  301; 
Anderson  v.  Hubbell,  93  Ind.  570;  S. 
C.,47  Am.  R.  394;  Rowe  v.  Major,  92 
Ind.  206;  R.  R.  Co.  v.  McLanuahan, 
69  Pa.   St.   23;   Baker  v.   R.   R.   Co., 

57  Mo.  265;  Batchelder  v.  Hibbard,  58 
N.  H.  269;  Thompson  v.  McEIarney. 
82  Pa.  St.  174;   R.  R.  Co.  v.  Renfree. 

58  Mo.  265;  Veghte  v.  W.  P.  Co.,  19 
N.  J.  E.  142;  R.  R.  Co.  v.  Battle,  66 
N.  C.  540;  Hosher  v.  R.  R.  Co.,  60 
Mo.  329;  W.  P.  Co.  V.  Veghte,  21  N. 
J.  E.  463;  Maxwell  v.  Bridge  Co.,  41 
Mich.  593;  Nixon  v.  Carco,  28  Miss. 
414;  Beaupland  v.  McKeen,  28  Pa.  St. 
124;  Shall  v.  Biscoe,  18  Ark.  142; 
Ferguson  v.  Miller,  4  Cal.  97;  Cochran 
V.  Harrorw,  22  111.  345;  Goltschalk  v. 
De  Santos,  12  La.  473. 


Equitable  Estoppel. 


1071 


determine  in  all  cases,  but  some  turpitude,  some  inexcusable 
wrong  that  constituted  the  direct  motive,  or  induced  the  outlay 
or  purchase,  is  necessary  to  give  silence  or  acquiescence  to  the 
force  of  an  estoppel  in  pais.  Hence,  the  ignorance  of  the  true 
state  of  title  on  the  part  of  the  purchaser  must  concur  with  will- 
ful misrepresentation  or  concealment  on  the  part  of  the  person 
estopped.  In  order  to  apply  an  estoppel  it  is  indispensable  that 
the  party  standing  by  and  concealing  his  rights  should  be  fully 
apprized  of  them,  and  should  by  his  conduct  or  gross  neglect 
encourage  or  influence  the  purchaser.'  Rights  can  be  lost  or  for- 
feited only  by  such  conduct  as  would  make  it  fraudulent  and 
against  conscience  to  assert  them.  Therefore  if  one  act  in  such 
a  manner  as  intentionally  to  make  another  believe  that  he  has  no 
rights,  or  has  abandoned  them,  and  the  other  trusting  to  that 
belief,  does  an  act  which  he  would  not  have  done,  the  fraudulent 
party  will  be  estopped  from  asserting  his  right.'' 

Thus,  an  agreement  was  entered  into  between  D.  and  a  rail- 
road company  that  the  company  should,  within  a  specified  time, 
convey  to  D.  certain  parcels  of  real  estate,  the  parcels  to  be  con- 
veyed "by  clear  title,"  to  be  made  when  required  by  D.  At 
the  time  of  the  contract,  the  title  of  one  of  these  parcels  was  in 
S.,  the  president  of  the  company,  who  afterwards  agreed  to  let 


'  Watkins  v.  Peek,  43  N.  H.  573; 
Morris  v.  Moore,  11  Humph.  433; 
'Storrs  V.  Barker,  6  Johns.  Ch.  167; 
Buckingham  v.  Smith,  10  Oliio,  109; 
Roy  1st  on  v.  Howe,  15  Ala.  309;  Reper 
V.  Gilmore,  49  Me.  157;  Commonwealth 
V.  ]\[oltz,  10  Pa.  St.  531;  Catling  v. 
Rodman,  6  Ind.  392;  McCafferty  v. 
Conover,  7  Ohio  St.  105. 

2  Burleson  v.  Burleson,  28  Tex. 384; 
Dixon  V.  Green,  24  Miss.  612;  Goodeu 
V.  Cincinnati,  &c.  Co.,  IS  Ohio  St. 
169;  Aiider.son  v.  Armistead.  69  111. 
452;  Bank  v.  Roop,  84  N.  Y.  292; 
Mason  v.  Williams,  66  N.  C.  564; 
Rice  V.  Bunce,  49  Mo.  231;  Love  v. 
Barber,  17  Tex.  317;  Malloney  v. 
Horan,  49  N.  Y.  Ill;  Clark  v.  Cool- 
idge,  SKas.  189;  Williams  v.  Chand- 
ler,  25  Tex.  11;    Burkhalter  v.  Ed- 


wards, 16  Ga.  593;  Beatty  v.  Sweeney, 
26  Mich.  217;  Scoby  v.  Sweatt,  28 
Tex.  14;  Miller  v.  Bingham,  29  Vt. 
82;  Rangely  v.  Spring,  22  Me.  130; 
Page  V.  Arnim,  29  Tex.  53;  Mattison 
V.  Young,  24  N.  J.  E.  535;  Jones  v. 
Byler,  39  Tex.  610;  Sherrill  v.  Sher- 
rill,  73  jSr.  C.  8;  Young  v.  Vaugh,  23 
N.  J.  E.  325;  Mayer  v.  Rumsey,  46 
Tex.  371;  Blakeslee  v.  Starring,  34 
Wis.  538;  Shepley  v.  Rangely,  1  W. 
&  M.  217;  L'Ammorueux  v.  Van 
Denburg,  7  Paige,  16;  Chapman  v. 
Hamilton,  19  Ala.  121;  Brooks  v. 
Record,  47  111.  36;  Curtis  v.  Tripp,  1 
Iowa,  318;  Riley  v.  Quigley,  50  lU. 
304;  Brinkerhoft"  v.  Lansing,  4  John. 
Ch.  65;  Cochran  v.  Harrow,  22  111 
345. 


1072  Affecjixg  Title  to  Land. 

the  comj3any  have  it  for  tlie  purpose  of  enabling  it  to  fulfill  its 
contract,  the  company  agreeing  to  p.iy  him  $20,000  for  the  lot. 
S.  afterwards,  on  an  order  froni  D.,  conveyed  the  lot  to  C,  mak- 
ing no  intimation  of  any  claim  or  lien  M'hich  he  held  on  the  land, 
for  the  purchase  money  unpaid  by  the  compan3^  S.  was  estopped 
as  between  him  and  D.  from  setting  up  any  claim  for  the  unpaid 
purchase  money,  although  D.  knew  of  the  contract  between  S. 
and  the  company,  and  that  the  purchase  money  was  unpaid.' 

§  945.  But  to  constitute  an  equitable  or  estoppel  in  2)ai.s  the 
act  or  admission  must  be  shown  to  have  had  a  direct  or  immediate 
influence  upon  the  conduct  of  the  ]iarty  claiming  its  benefit ;  no 
such  estoppel  can  arise  without  proof  of  wrong  on  one  side,  and 
injury  suffered  or  apprehended  on  the  other,  nor  unless  the  injur}' 
be  so  clearly  connected  with  the  wrong  that  it  might  and  ought 
to  have  been  foreseen  by  the  guilty  party.  There  must  unques- 
tionably, be  some  degree  of  wrong,  for  a  statement  innocent  in 
itself  and  susceptible  of  being  withdrawn  or  contradicted,  unless 
it  be  made  with  the  knowledge,  that  it  will  or  may  be  acted  upon, 
cannot  be  rendered  binding  by  what  subsequently  occurs.  The 
only  qualifications  which  seem  necessary  to  this  doctrine  as  laid 
down,  is  that  a  p^n-ty  may  be  estopped  by  acts  and  declarations 
which  M'cre  designed  to  influence  another  who  has  acted  upon 
them,  although  both  parties  were  ignorant  that  what  is  thereby 
represented  is  not  true  ;  for  if  one  of  tv.'^o  innocent  parties  nnist 
sutler,  lie  through  whose  agency  the  loss  occurred  should  sustain 
it.^ 

§  946.  Estoppels  in  pais  are  well  founded,  when  confined  to 
the  legitimate  purpose  of  preventing  one  man  from  being  injured 
by  the  acts  or  misrepresentations  of  another.  Where  no  injur}' 
results  from  a  misrepresentation,  its  decision  belongs  to  the  forum 
of  morals,  and  not  to  the  judicial  tribunals.  The  connection 
between  the  wrong  and  the  injury  should  be  direct  and  apparent, 
and  such  as  to  leave  no  reasonable  doubt  that  the  former  is  the 
efficient  cause  of  the  latter.  For  as  the  eff^ect  of  an  estoppel  is  to 
prevent  the  assertion  of  rights  unquestionably  valid,  or  preclude 
defenses  which  would   otherwise  be  good,  justice  requires  that  it 

»  Corwin    v.    Collett,    16  Ohio    St.         '  Hiorns   v.   Holton,  13  E.  L.  &  E. 
289.  596;  Smith  v.  Kidd,  68  N.  Y.  131. 


Equitable  Estoppel.  1073 

should  not  be  enforced,  unless  sustained  in  every  particular.  In 
order,  therefore,  to  raise  an  express  or  implied  admission  of  one 
party  from  the  rank  of  evidence,  to  the  dignity  of  an  estoppel,  it 
must  not  only  be  shown  that  its  retraction  will  be  injurious  to  the 
other  party,  but  that  the  injury  results  from  the  course  of  action 
induced  by  the  admission.  Whatever,  therefore,  the  degree  of 
moral  wrong  on  one  side,  and  injury  on  the  other,  there  will  be 
no  estoppel,  unless  the  injury  be  the  direct  and  natural  result  of 
the  wrong.' 

§  947.  The  true  rule  seems  to  be,  and  with  it  goes  the  later 
and  better  considered  cases,  that  the  mere  presence  of  the  owner, 
if  he  have  concealed  no  fact  of  which  he  was  informed,  and  which 
the  purchaser  could  not  have  learned  by  the  use  of  reasonable 
diligence,  will  not  create  an  estoppel,  unless  the  purchaser  can 
show  that  he  had  reason  to  suppose,  from  the  presence  of  the 
owner,  that  he  sanctioned  and  acquiesced  in  the  sale. 

§  948.  A.  party  will,  in  many  instances,  be  concluded  by  his 
declarations  or  conduct  Mdiich  have  influenced  the  conduct  of  an- 
other to  his  injury.  But  in  the  application  of  this  principle  with 
respect  to  the  title  to  real  property,  it  must  appear,  first,  that  the 
party  making  the  admission,  by  his  declaration  or  conduct,  was 
apprised  of  the  true  state  of  his  own  title ;  second,  that  he  made 
the  admission  with  intent  to  deceive,  or  with  such  culpable  and 
careless  negligence  as  to  amount  to  constructive  fraud ;  third, 
that  the  other  party  was  not  only  destitute  of  all  knowledge  of 
the  true  state  of  the  title,  but  of  all  means  of  acquii'ing  such 
knowledge;  and  further,  that  he  relied  directly  on  such  admis- 
sion, and  will  be  injured  b}^  allowing  its  truth  to  be  disproved. 
It  is  only  when  silence  becomes  a  fraud  that  it  postpones.  The 
element  of  fraud  is  essential  either  in  the  intention  of  the  party 
eetopped,  or  in  the  effect  of  the  evidence  which  he  attempts  to 
set  up.  The  primary  ground  of  this  estoppel  is,  that  it  M^ould  be 
a  fraud  in  a  party  to  assert  what  his  previous  conduct  had  denied, 
when  on  the  faith  of  that  denial  others  have  acted. 

»  McCune  v.  McMicbael,  29  Ga.  312.  lerbacb,  38  Cal.  300;    Nivia  v.    Bel- 

^  Chandler   v.    White,    84  111.    435;  knap,    2    Johns.    273;    Davidson    v. 

Flower  v.  Elwood,  66  111.  447;  Hill  v.  Young,  38  111.  152;  Wilson  v.  Castro, 

Epley,  31  Pa.  St.  337;  Martin  v.  Zel-  31  Cal.  420;  Hawkins  v.  Church,  23 

Vol.  I.— 68 


1074  Affecting   Title  to  Land. 

§  949.  One  essential  elen)onfc  of  every  erjuitable  estoppel,  by 
which  a  man  is  to  be  pi-echided  from  claiming  Avhat  is  his  own. 
is  ignorance  on  the  part  of  the  purchaser  or  party  claiming  the 
benefit  of  the  estoppel,  as  to  the  trne  state  of  the  title.  To  estop 
a  vendor  of  real  estate,  by  statements  in  regard  to  the  effect  of 
his  deed  or  extent  of  the  grant,  such  ignorance  on  the  part  of  the 
purchaser  must  concur  with  knowledge  of  his  title,  and  willful 
concealment  or  misrepresentation  in  regard  to  it  on  the  part  of 
the  vendor,  or  snch  gross  negligence  or  indifference  to  the  rights 
of  others  as  under  the  circumstances  to  be  equivalent  to  actual 
and  premeditated  fraud.  It  nmst  also  appear  that  the  language 
or  conduct  of  such  vendor  was  the  direct  inducement  to  the  pur- 
chase by  the  other  party,'  and  that  the  purchaser  will  suffer  if 
tlie  vendor  is  permitted  to  deny  it.*  Where  one  who  by  settle- 
ment had  acquired  a  right  of  pre-emption,  promised  a  party,  who 
was  about  purchasing  the  section  pre-empted,  that  he  would  not 
assert  his  claim,  it  was  held,  that  he  was  estopped,  thereby  from 
applj'ing  for  a  certificate  from  the  land-ofHce.' 

§  950.  The  principle  of  estoppels  in  pais  applies  equally 
to  transactions  in  regard  to  real  and  personal  property.'  It 
does  not  at  all  touch  the  question  of  creating  title  to  real 
estate  by  parol."  But  such  personal  property  must  be  in  exist- 
ence and  expressly  designated  at  tiie  time,  because  the  vendor 

Minn.    256;  Jenner-s  v.  Berry,  17  N.  Guthrie  v.  Quinn,  43  Ala.  569. 

H.  549;I)dlettv.  Kemble,  23N.  J.  E.  'Norton   v.   Kearny,  10  Wis.   443; 

58;  Kinswortby  v.  ]\Iitchell,  24  Ark.  Huutsucker  v.    Clark,    13    Mo.    333; 

145;    Pence    v.    Arbacklc,   22   Minn.  Doub  v.  Mason,  2  Mil.  380. 

417;  Morgan  v.  R.  R.,  96  U.  S.  716;  ^  Huntsucker  v.  Clark,  13  Mo.  333. 

Brant    v.    Coal    Co.,    93    U.  S.  326;  «  Ciuuniings  v.  Webster,  4  Mason, 

Dolarqne  v.  Cress,  71  111.  380;  Holmes  142;    Commouweallh  v.  Sbermau,  18 

V.  Crowell,  73  N.  C.  613;  Plummer  v.  Pa.  St,  243. 

Jlokl,  22  Miuu.  15;  iStalon  v.  Bryant,  '•>  Corkhill  v.  Lander,  44  Barb.  218; 

55  Mis.s.  261;  Schenck  v.   Sautter,  73  Morau     v.    Palmer,    13     Mieli.    367;" 

Mo.    46;  Bank   v.  Wilmot,  94  N.  Y.  Spillcr  v.  Scljribner,  36  Yt.  245;  Keys 

221;  S.    C,  46  Am.  R.  137;  Allien  v.  v.  Test,  33  111.  316;  Brown  v.  Bowen, 

Wortberspoon,  SON.  Y.   Super.  417;  30  N.  Y.  519;  Peabody  v.  Leacb,  18 

Vecdcr  v.    Mudgett,  95   N.    Y.    295;  Wis.  057;  Cox  v.  Buck,  3  Strobb.  366; 

Cooper,  in  re,  93  N.  Y.   507;  Gleasou  Pickard  v.    Sears,    6   A.    «.t    E.    469; 

V.  Dist.  &c.,  19  Ct.  of  CI.  430;  Graves  Stephen  v.  Baird,  9  Cow.  461;  Ilub- 

V.  Rogers,  59  N.  II.  542  ;    Griffith  v.  bard  v.  Briggs,  31  N.  Y.  518;  Tbomp- 

Lawreuce,  135  Mass.  365.  son  v.  Sanborn,  11  N.  H.  301;  Mason 

'Gove     V.    White.    20     AVis.    425:  v.  Williams.  8  Jones.  478. 


Equitable  estoppel.  1075 

bj  such  sale  asserts  that  he  has  an  existing  title,  and  is  bound 
to  support  and  defend  it,  and  the  purchaser  has  a  right  to  rely  on 
such  assertion,  but  when  the  property  sold  is  not  in  existence,  the 
reason  fails  and  the  estoppel  does  not  apply.'  If  a  party  who  is 
interested  in  an  estate,  and  who  has  knowledge  of  his  rights,  mis- 
leads another  into  dealing  with  the  estate,  he  will  be  postponed 
in  equity  to  the  party  so  misled,  and  will  be  required  to  make 
good  his  representations,  even  to  the  extent  of  any  claim  or  title 
he  may  have  in  or  to  the  estate,  and  this  though  the  representa- 
tions are  verbal  and  without  consideration,  moving  directly  from 
him.''  The  estoppel  does  not  operate  as  a  conveyance  of  the  in- 
terest of  the  party  making  it,  but  by  way  of  estoppel  precludes 
him  from  setting  up  any  claim  or  title  in  himself  at  the  time, 
against  the  party  he  misleads.  This  estoppel  in  some  states  is 
not  available  in  a  court  of  law,  but  may  be  enforced  in  a  court  of 
equity. 

§  951.  Where  a  person  knowing  his  own  title  to  property, 
even  although  covert  or  under  age,  encourages,  or  even  lies  by, 
and  permits  a  purchaser  to  buy  it,  equity  will  compel  such  person 
to  convey  to  the  purchaser.'     When  anything  in  order  to  a  pur- 

'  Chynowitli    v.    Tcnney,    10   Wis.  Bulk's  Estate,  1  Pars.  Eq.  470;  Adlum 

;J97;  Wfilker  v.  Murphy,  34  Ala.  591;  v.  Yard,  1  Rawle,  171;  Hobbs  v.  Nor- 

Sniith  V.    Mundy,    18   Ala.  182;   Mc-  ton,  2  Ch.  Ca.  128;Hanniug  v.  Ferrers, 

Pbtrson  v.  Walters,  16  Ala.  714.  2  Eq.  Cas.  Abr.  356;  Govett  v.  Ricb- 

2  David   V.    Sbepard,   40  Ala.   587;  mond,  7  Sim  1 ;  Nicholson  v.  Hooper, 

Beatty    v.    Sweeuy,    26    Mich.    217;  4  My.  &  C.  485;  Sandys  v.  Hodgson, 

Rangcley  v.  Spriiio;.  22  Me.  130;  Baine  10  A.  &  E.  472;  Stevens  v.  Stevens,  3 

V.  Rickett,  1  Ciu.  161.  Cow.  20;  Leader  v.  Ahern,  4  D.  &  W. 

»  Wendell   v.    Rensselaer,  1   .Johns.  495;  Boyd  v.  Belton,  1  J.  &  L.  130; 

Ch.  344;   Carr   v.  Wallace.   7   Watts,  Thompson  v.  Simpson,  2  J.  &  L.  110; 

100;  Wells  v.  Pierce,  27  N.  H.    503;  Crofts  v.   Middletou,  2  K.  &  J.  194; 

Higgins    V.    Ferguson.     14    III.    269;  Hutton  v.  Rossiter,  7    !)«  G.  M.  &  G. 

Xcvius  v.    Belknap,    2    Johns.    573;  9;  Savage  v.  Foster,  9  Mod.  35;  Evans 

Cheeney    v.    Arnold.    18    Barb.    435;  v.  Bicknell,  6   Ves.    174;    Draper  v. 

Sanderson   v.  Ballauce,  3  Jones   Eq.  Borlace,  2  Vern.  369;  Barrow  v.  Bar- 

322;  Godefrey  v.  Caldwell,  2  Cal.  489;  row,  4  K.  &  J.  469;  Watts  v.  Cres.s- 

R.    R.    Co.    V.   Du  Bois,  12  Wall.  47:  well,  9  Mod.  38;  Clare  v.  Earl.  &c.,  3 

Commonwealth    v.   Green,  4   Whart.  Ch.  C.  85;  Cory  v.  Gertchen,  2  Msd. 

G04;    Dewey    v.    Field,   4    Met.   381;  46;  Overton  v.  Bannister,  3  Hare,  503; 

('liapmanv.  Chapman,  59  Pa.  St.  214:  Stokeman  v.  Dawson,  1   De  G.  &  S. 

Hope    V.    Lawrence,    50    Barb.    258;  90;   Wright   v.    Snow,   2   De  G.  &  S. 

Hinds  V.    Ingham,  31   111.  400;    Car-  321;    Vaughan    v.    Vandersteigen,    2 

penter  v.  Carpenter,  25  N.  J.  E.  194;  Drew  63;  Ass'n  v.  King,  3  De  G.  »&  J. 


1076 


Afp^ecting   Title  to  Land. 


chase  is  pnblicl}'  ti'ansacted,  and  a  third  person,  knowing  thereof, 
and  of  his  own  right  to  the  lands  intended  to  be  purchased,  docs 
not  give  the  purchaser  notice  of  such  right,  he  shall  never  after- 
wards be  admitted  to  set  up  such  right  to  avoid  the  purchase;  it 
is  apparent  fraud  in  him  not  to  give  notice  of  his  title  to  the 
intended  purchaser;  and  in  snch  case  itifwic}/ 07^  coverture  shaW 
be  no  excuse ;  for  though  the  law  prescribes  formal  conveyances 
and  assurances  for  the  sales  and  contracts  of  infants  a.nd  femes 
covert,  which  every  person  who  contracts  with  them  is  presumed 
to  know ;  and  if  they  do  not  take  such  conveyances  as  are  neces- 
sary, they  are  to  be  blamed  for  their  own  carelessness,  when  they 
act  with  their  eyes  open  ;  yet,  when  their  right  is  secret,  and  not 
known  to  the  purchaser,  but  to  themselves,  or  to  such  others  who 
will  not  give  the  purchaser  notice  of  such  right,  so  that  there  is 
no  laches  in  him,  the  court. will  relieve  against  that  right,  if  the 
person  interested  will  not  give  the  purchaser  notice  of  it,  knowing 
he  is  about  to  make  the  purchase  ;  neither  is  it  necessary  that 
sucli  infant  or  feme  covert  should  be  active  in  promoting  the  pur- 
chase, if  it  appears  that  they  were  so  priv}^  to  it  that  it  could  not 
be  done  without  their  knowledge.'  Thus,  a  husband  present  at 
the  sale  of  chattels  in  which  his  wife  is  interested  as  a  distributee 


63;  Wriglit  v.  Leonard,  8  Jur.  N.  S. 
415;  Blight  v.  Boyd,  1  Story,  478; 
Davis  V.  Tingle,  8  B.  Men.  539;  Hall 
V.  Timmons,  2  Rich.  Eq.  120;  Norris 
V.  Wat,  2  Rich.  148. 

'  Clare  v.  Earl  of  Bedford,  13  Vin. 
530;  Bcnisford  v.  ?,Iilward.  2  Alk.  49; 
Conyert  v.  Gertckon,  2  Madd.  40; 
Thompson  v.  Simpson,  2.J.  &  L.  110; 
Govctt  V.  Rithraond.  7  Sim.  1;  Over- 
ton V.  Bannister.  3  Hare,  503;  E%-aus 
V.  Bieknell,  6  Yes.  181;  Savage  v. 
Foster,  9  Mod.  37;  Bailey  v.  Trammel, 
27  Tex.  317;  Beiu  v.  Ileal h,  7  Miss. 
238;  Crouch  v.  Sutton,  1  Grant,  114; 
Murray  v.  Boulee,  3  M.  &  K.  221; 
Vausrhn  v.  Yandei.stegen,  2  Drew, 
379;  Johnson  v.  Gallagher,  3  D.  F.  & 
J.  494 ;  Ferguson  v.  Bobo,  54  Miss. 
121;  Danu  v.  Cudney,  13  Mich.  239; 
Taggurl  s  Appeal,  £{)  Pa.  St.  627;  Carr 


v.  Wallace,  7  Watts,  394;  Troxell  v. 
Iron  Co.,  42  Pa.  St.  513;  Ayers  v. 
Watson,  57  Pa.  St.  300;  Hobbs  v. 
Norton,  1  Vera.  136;  Haiihing  v.  Fer- 
rers, 2  Eq.  Cas.  Abr.  356;  Walts  v. 
Cresswell,  9  Vin.  415;  Watts  v.  Hai.ls- 
weli,  4  Bro.  C.  C  507;  JIangles  v. 
Dixon.  1  M.  &  G.  437;  Nicholson  v. 
Hooper,  4  31.  &  C.  179;  King,  iu  re,  3 
De  G.  &  J.  03;  Smith  v.  Armstrong. 
24  Wis.  446;  Gatling  v.  Rodman,  6 
Ind.  289;  Hartman  v.  Kendall,  4  Ind. 
403;  Stale  v.  Holloway,  8  Blackf.  45; 
Sloris  V.  Barker,  6  Johns.  Ch.  160; 
Lee  v.  Porter.  5  Johns.  Ch.  268;  To-^-n 
v.  Needhum.  3  Paige,  345;  Cochran  v. 
Harrow,  22  111.  345;  Bodine  v.  Killeen, 
53  N.  Y.  93;  McCaa  v.  Woolf,  42  Ala. 
389;  Carpenter  v.  Carpenter,  29  N.  J. 
E.  194. 


Equitable  Estoppel.  1077 

of  an  estate,  who  induces  anotlier  to  purchase,  by  declaring  the 
title  good,  estops  himself  and  wife  if  she  afterwards  survives 
him,  from  setting  up  any  title/  The  distinction  seems  to  be 
between  participation  or  procurement,  and  silence  or  acquiescence, 
the  one  imposing  no  liability  unless  there  is  willful  concealment 
or  fraud  f  while  the  other  may  create  a  bar,  notwithstanding  good 
faith  and  fair  dealing,  by  rendering  it  more  just  to  throw  the  loss 
on  the  party  in  wliose  conduct  it  originated,  than  on  a  purchaser 
Avho  has  been  induced  to  buy  by  assurances,  which,  though 
believed  at  the  time,  turn  out  to  be  unfounded.'  Thus,  where 
in  a  sale  of  land,  both  parties  were  honestly  mistaken  in  marking 
off  the  lot,  so  tliat  the  vendee  took  and  built  a  liouse  upon  a  por- 
tion of  the  Lmd  intended  to  have  been  reserved  by  the  vendor, 
the  vendor  looking  on,  and  the  vendee  occupying  the  house  on 
the  land  for  thirteen  years,  with  the  vendor's  knowledge. 
Held,  the  vendor  was  estopped  by  his  acts  to  recover  back  the 
excess — both  parties  being  equally  innocent,  and  the  vendee  hav- 
ing acted  on  the  faith  of  the  vendor's  acts."  No  one  should  be 
nuide  answerable  for  stating  his  opinion  truly,  or  for  answering 
the  question  put  to  him  according  to  his  belief  or  conviction.^ 

§  952.  Courts  of  equity  will  not  disregard  the  })rinciples  of 
estoppel,  except  in  those  cases  where  it  becomes  necessary  to  pre- 
vent injustice  through  accident,  fraud,  or  mistake.^  Positive 
acts,  tending  to  mislead  one  ignorant  of  the  truth,  which  do  mis- 
lead him  to  his  injury,  are  good  grounds  of  estoppel,  and  ignor- 
ance of  title,  on  the  part  of  him  who  is  estopped,  will  not  excuse 
him.  Silence  will  postpone  a  title  where  one,  knowing  his  title, 
should  speak  out.  One  led  by  such  silence  ignorantly  and  inno- 
cently to  i"est  on  his  title,  believing  it  to  be  secure,  and  to  expend 

1  McCaa  v.Woolf,  42  Ala.  389;  Bean  Wells  v.  Pierce,  27  N.  H.  503:  Willis 
V.   Welsh,   17  Ala.   770;   Harrisou  v.      v.  Swartze,  28  Pa.  St.  413. 

Pool,  16  Ala.  167;  McCrevy  v.  Rem-  4  Willis  v.   Swartze,  28  Pa.  St.  413; 

sen,  19  Ala.  430.  ^  Parke?    v.    Barker,    2    I\Iet.    421 ; 

2  Knouff  V.  Thompson,  16  Pa.  St.  Lawrence  v.  Brown,  5  N.  Y.  394; 
357;  Ciabaiigh  v.  Byeily,  7  Gill,  384;  Morris  v.  Moore,  1  Humph.  443; 
Strong  V.  Ellsworth,  26  Vt.  369.  Tilgbman   v.    West,  8  Ired.   Eq.    83; 

3  Sclinec   V.    Schnee,    26  Wis.    377;  Royston  v.  Harris,  15  Ala.  309. 
Anderson  v.  Armstrong,  69  111.  452;  ^  Sprigg  v.    Bank,  1   McLean,  384; 
Beaupland  v.  :S[cKeen,  28  Pa.  St.  124;  S.  C,  10  Pet.  257. 

McKelvy  v.  Truby,  4  W.   .&  S.    323; 


1078  Affecting  Title  to  Land. 

money  and  m;ikc  iiuproveinents,  will  be  protected.'  Where  a 
wareliouse,  built  by  ;i  railroad  company,  with  permission  of  one 
tenant  in  common,  had  burnt  down,  and  the  railroad  company 
re-erected  another  on  the  same  site,  if  the  other  tenant  in  com- 
mon has  knowledge  tliat  the  company  were  re-erecting,  and  gav^e 
no  notice  of  his  claim,  and  the  company  believing  he  sanctioned 
the  original  management  for  erecting  the  warehouse,  he  was 
estopped  after  its  completion  from  setting  up  his  claim.' 

§  953.  It  is  not  necessary,  in  order  to  create  an  equitable 
estoppel,  that  the  party  should  design  to  mislead.  It  is  sufficient 
it'  the  act  was  calculated  to  mislead,  and  actually  has  misled,  a 
person  acting  upon  it  in  good  faith,  and  who  exercised  reasonable 
oare  and  diligence  under  all  the  circumstances,'  and  effectually 
estops  the  party  from  averring  a  state  of  facts  different  from 
what  the  party  acted  upon." 

f  954.  Standing  by  does  not  mean  actual  presence  or  actual 
participation  in  the  transaction,  but  it  means  silence  where  there 
is  a  knowledge  and  a  duty  to  make  a  disclosure.  It  does  not 
import  an  actual  presence,  but  implies  knowledge  under  such 
circumstances  as  rendered  it  tlie  duty  of  the  possessor  to  com- 
municate it;'  and  wliile  no  one  will  be  bound  liy  an  estoppel 
arising  from  silence,  who  is  not  shown  to  have  been  guilty  of 
fraud,  or  of  that  gross  neglect  and  ignorance  which,  when  the 
rights  of  others  are  in  question,  is  constructively  frandulenc,  still 
a  man  who  connives  at  a  deceit,  which  he  might  luive  exposed, 

1  Chapman  v.  Chapman,  59  Pa.  St.  v.  Lathrop,  12  Wis.    466;   Ch^-iiowiili 

214.  V.  Tenncy,  lOWis.  397. 

■■^  R.  R.   Co.  V.  McLanahan,  59   Pa.  ^  Anderson  v.  Hiibbell,  93  Ind.  570: 

St.    23;   Feiry   Co.  v.  Dodge   Co.,  6  S.  C,  47  Am.  II.  394;  Pence  v.  Mc- 

Neb.  18.  Pherson,  30  Ind.  06;   Lee  v.  Kirkpat- 

3  Bank  v.  Hazard,    30  N.  Y.  226;  rick,  17  N.  J.  E.  264;  Gatling  v.  Kod- 

Preston    v.    Mann,    25    Conn.     128;  man,  6  Ind.  289;  State  v.  Holloway.  8 

Bank  v.  Bank,  50  N.  Y.  575;  Mattison  Blackf.  45;  Eddy  v.  Ellis,  1  Ind.  56; 

V.  Young,  24  N.  J.  E.  535;   Ilorne  v.  Calherwood,  v.  \Tatson,  65   Ind.  576; 

Cole,    51   N.    H.   287;   Pierce   v.  An-  Richardson   v.    Chickering.  41  N.  H. 

drews,  6   Cush.  4;   Kirk  v.  Ilartman,  380;  R.  R.  Co.  v.  McLannahan,  59  Pa. 

63  Pa.  St.  97;   Rice  v.  Bunce,  49  Mo.  St.  23;   R.  R.  Co.  v.  Renfroe,  58  Mo. 

231 ;  Rudd  v.  Matthews.  79  Ky.  479.  65;   Veghle  v.  W.  P.  Co.,  19  N.  J.  E. 

*  Vilas  V.  Mason,  25  Wis.  310;  Fos-  142;   Batchelder  v.  Hibbard,  58  N.  H, 

ter    V.    Bettisworth,    37    Iowa,   415;  269. 
Rudd  V.  Mathews,  79  Ky.  479;   Bank 


Equitable  Estoppel.  1079 

will  be  justly  required  to  bear  the  consequences,  instead  of  allow- 
ing them  to  fall  on  the  injured  party.  Thus,  a  grantee,  who 
suffers  premises  which  have  been  conveyed  to  him  to  be  sold  to 
a  third  person,  will  not  be  allowed  to  set  up  his  title  to  the  injury 
of  such  purchaser.'  So  the  original  grantor,  having  encouraged 
the  trustees  to  make  a  conveyance,  and  recognize  the  title  of  their 
grantees,  stating  often  to  persons  who  had  bought  land  of  such 
grantees  that  he  had  a  life  estate  onl}^,  and  that  the  fee  was  in 
such  grantees,  and  he  was  glad  to  be  relieved  from  his  debts, 
which  the  said  grantees  had  agreed  to  pay,  on  account  of  the 
property  conveyed  to  them,  he  and  his  heirs  were  estopped  to 
dispute  such  gi-antees'  title.'''  Where  parties  stand  by  and  acqui- 
esce in  the  sale  of  certain  propert}',  and  allow  the  purchaser  to  go 
into  possession,^  they  are  estopped  from  afterwards  claiming  title 
in  themselves.  A  man  will  not  be  permitted  to  recover  land 
which  he  has  encouraged  another  to  occupy  and  improve,  even 
when  the  encouragement  was  given  under  the  influence  of  a  mis- 
take and  in  ignorance  of  his  own  better  right.*  So,  where  a 
party  stands  by  and  sees  another  convert  his  property  to  his  own 
use,  without  protest,  and  such  knowledge  of  their  use  can  be 
shown,  he  is  estopped  from  claiming  the  property."  Where  a 
person,  who  holds  a  contract  of  purchase  of  land,  stands  by  and 
sees  another  purchase  the  same  land  from  his  vendor,  paying  his 
own  nioi.c)'  therefor,  and  fails  to  make  known  any  claim  in 
respect  to  the  land,  he  will  be  estopped  from  afterwards  claiming 
that  the  second  purchaser  bought  for  his  benefit."  Although  an 
estoppel  in  j^ais  may  not  always  run  with  the  land,  a  subsequent 
purchaser,  \vith  knowledge  of  the  fact  constituting  the  estoppel, 
can  stand  in  no  better  condition  than  his  grantor.' 

1  Sandci'son   v.    Ballance,    2  Jones,  v.  Bradford,  43   Cal.  526;  Blackwood 

Eq.  323.  V.  Jones,  4  Jones  Eq.  54;   Burkhalter 

""  Funk  V.  Newcomer,  10  Md.  301.  v.  Edwards,   16   Ga.  593;   Thomas  v. 

3  PiUower  V.  Todd,  11  N.  J.  E.  312;  Pullis,  56  Mo.  211;   Cronover  v.  Ran- 

Bird  V.  Benton,  2  Dev.  L.  179;  Black-  die,  21  La.  Ann.  469. 
Avood  V.  Jones,  4  Jones  Eq.  54;  Gov-  ^  Hogan    v.    Brooklyn,    52    N.    Y. 

ernor   v.    Freeman,    4   Dev.    L.    472;  282. 

Grace    v.   Mercer,    10  B.    Mou.    261;         «  Baelir  v.  Wolf,  59  111.470. 
Ryder  V.  Rubber  Co.,  4  Bosw.  169.  '  Stinchfield  v.  Emerson,  52    Me. 

*  McKelvey  v.    Truby,  4  W.   &  S.  465;  Fitzsimmons  v.  Joselyn,  21  VU 

323;    Lamb  v.  Goodwin,  10  Ired.  320;  129;  Hart  v.  Bank,  33  Vt.  252. 
Vilas  V.  Mason,  25  Wis.  310;  Marquat 


lOSO  AiFixTiNG   Title  to  Land. 

§  955.  A  mistake  as  to  the  law  forms  no  ground  for  reforming 
a  contract,  3'et  where  a  party,  acting  muler  a  mistake  of  hiw  or  of 
fact,  does  acts  which  mislead  the  adverse  part}',  he  is  estopped,  as 
well  as  if  he  was  not  acting  under  such   mistake ;  thus,  to  a  suit 
brought  for  the  partition  of  a  lot,  several  persons  who  owned  the 
rear  part  thereof  were  made  jiarties.     In  the  decree,  the  descrip- 
tion of  the   property  ordered  to  be  sold  did  not  include  the  rear 
part  of  the  lot.     The  whole  not  being  sold,  F.,  one  of  the  owners 
of  the  rear  portion,  although  knowing  of  the  sale,  made  no  objec- 
tion, and  accepted  her  share  of  the  proceeds,  but  executed  no 
release.     Held,  that  her  acts,  in  not  objecting  to   the  sale  and 
afterwards  receiving  payment  for  her  share,  estopped  her  and  her 
representatives  from  claiming  any  interest  in  tlu;  land;  and  that 
the  sale  of  the  lot  under  the  decree  was  to  be  considered  as  con- 
veying a  good  title  to  the  whole  lot,  although  it  was  not  correctly 
described  in  such  decree.'     So,  where  heirs  stand   y'lently  by  for 
years,  while   the  occupant  of  land,  sold   by  the  administrator,  is 
making  valuable  and  lasting  improvements  on  the  property,  and 
redeeming  it  from  the  lien   of  the  ancestor's  debts,  they  will  be 
estopped  from  afterward  asserting  their  claim." 

§  956.  There  is  a  vast  difference  between  standing  by  without 
taking  measures  to  stop  a  sale  and  warning  the  purchaser,  or  even 
answering  such  questions  as  he  may  choose  to  put,  and  taking  an 
active  part  in  the  transaction,  or  inducing  him  to  ])urehase  by 
advice  or  persuasion.  Good  faith,  generally  an  excuse  in  the 
former  case,  is  insuthcient  in  the  latter,^  for  in  the  latter  case  the 
owner  is  neai'ly,  if  not  quite,  in  the  position  of  a  vendor,  and 
cannot  rely  on  the  innocence  of  his  assurances  as  a  reason  why 
they  should  not  be  made  good  subsequently,*  and  in  one  case  the 
court  held  that  inducing  one  to  buy  would  estop  the  assertion  of 
an  after  acquired    title,  on   the   principle  similar  to  that  which 

'  Garnor  v.  Bird,  57  Barb.  277.  Hamilton  v.  Hamilton,  4  Pa.  St.  193; 

"  Evans  v.  Snyder,  64  Mo.  516.  Tilton  v.  Nelson,  27  Barb.  595;  Barnes 

3  Davis  V.  Handy,  ;;7  N.  H.  65;  Col-  v.  McKay,   7  Ind.   301;   Robinson  v. 

bert  V.  Daniel,  32  Ala.  "314;  Barnes  v.  .Justice,  2   Pa.   St.  19;   Beaupland  v. 

McKay,  7  Ind.  301;   Storrs  v.  Barker,  McKeen,  28  Pa.  St.  124;  McKelvy  v. 

6  Johns.  Cli.  IGG;  Tilton  V.  Nelson,  27  Truby,   4   W.    &   S.   323;   Svirartz   v. 

Barb.  595.  Swartz,  4  Pa.   St.   363;  McMullen  v. 

■*  Wells  V.    Pierce,   27  N.   H.   503;  Weuner,  16  S.  &  K.  18. 


Equitable  Estoppel.  1081 

vests  by  descent  or  purchase  in  a  grantor  who  has  previously  con- 
veyed with  warranty/ 

§  957.  Tlie  estoppel  does  not  apply  where  everything  is 
equally  well  known  to  both  parties,  or  where  the  party  sought  to 
be  estopped  was  ignorant  of  the  facts  out  of  which  his  rights 
arose,  or  where  the  party  seeking  to  conclude  him  was  not 
influenced  by  the  acts  or  admissions  which  are  set  up  as  the 
grounds  of  the  estoppel.''  To  enable  a  man  to  set  up  a  title  by 
estoppel,  the  party  must  have  been  ignorant  of  the  true  state  of 
the  title  at  the  time  he  took  it,  or  been  without  means  of  ascer- 
taining it  by  a  reference  to  records.^  Where  the  purchaser  of 
real  estate  has  admitted  that  he  had  the  means  of  knowing  that 
there  was  an  adverse  claim  before  he  bought,  he  is  estopped  to 
den}'  that  he  had  notice,  and  cannot  be  considered  a  purchaser  in 
good  faith  and  without  notice.^  When  a  man  has  encouraged 
another  to  settle  on  and  improve  land,  and  expend  his  money 
upon  it,  he  will  not  be  permitted  afterwards  to  take  it  from  him, 
although  he  has  an  older  and  better  title,  and  acted  himself  in 
ignorance  of  his  own  right/  but  this  applies  only  to  a  l>ona  fide 
improver,  who  is  led  into  a  mistaken  expenditure  by  the  acts  or 
connivance  of  another,  supposing  the  property  to  be  his  own,  and 
not  where  he  knew  the  land  to  be  in  dispute  between  two  parties, 
and  volunteered  to  originate  a  new  claim. ^  A  party,  who  is  not 
only  present  and  acquiescing  in  what  is  done,  but  for  a  valuable 
considei'ation  procures  another  to  convey  away  his  property,  will 
be  bound  by   the   conveyance  as   though  it   were  his  own  act.^ 

'  Beaupland  v.  McKeen,  28  Pa.  St.  Goddefroy    v.    Caldwell,    2   Cal.    89; 

124.  Willis  V.  Swartz,  28  Pa.  St.  413;  Mc- 

.    ^  Fletcher  v.  Holmes,  25   Ind.  458;  Kelvy  v.  Truby,  4  W.  &  S.  323;  Wells 

Hill  V.  Epley,   31  Pa.  St.  831;  MaHo-  v.  Pierce,  27  N.  11.  503:   Pilliower  v. 

uey  V.  Horan,  49  N.  Y.  Ill;  Clark  v.  Todd,    11    N.    J.    E.  312;    Beatty  v. 

Coolidge,  8  Kas.  109;  Foster  V.  Albert,  Sweeny,    2G  Mich.  417;  Chapman  v. 

42  [nd.  40.  Chapman,  59  Pa.  St.  214;  Marshall  v. 

3  Wood  V.    Griffin,  46  K  H.  237;  Pierce,  12  N.  H.  127;  Hobbs  v.  Nor- 

Gove  V.  White,  20  Wis.  425:  Hill  v.  ton,  1  Vern.  136. 

Epley,    Snp.;   Brant  v.   Coal  Co.,  93  «  McCormick  v.McMurtrie,  4  Watts, 

U.   S.  .336;    Crest  v.  .Jack,  3  Watt.s,  192;  McKelvy  v.  Truby,  4  AV.  &  S.  423; 

240;   KnonfE  v.  Thompson,  16  Pa.  St.  Beaupland  v.  McKean,  28  Pa.  St.  124. 
361;  Plummer  v.  Mold,  22  Minn.  15;  ^  Burton  v.  Black,  32  Ga.  53;  Bishop 

*  Speck  V.  Riggin,  40  Mo.  405.  v.  Blair,  36  Ala.  80;   Ford  v.  Loomis, 

»  Miller  v.  Miller,  60  Pa.   St.    16;  33  Mich.  121. 


1082  Affecting   Title  to  Land. 

Whei'e  a  party  has  consented  that  tlic  legal  title  to  lands  should 
by  an  absolute  conveyance  be  passed  ov^er  to  another,  or  discovers 
that  another  has  fraudulently  obtained  the  legal  title  and  put  it 
in  the  niaiket,  he  cannot  stand  by  and  see  third  parties  acquire 
rights  upon  such  apparent  legal  title,  and  afterwards  ask  for  relief 
which  is  purely  e<piitable.'  But,  in  Massachusetts,  the  estoppel 
is  applied  only  where  the  party  conceals  an  outstanding  title.^ 

§  958.  Where  a  party,  who  has  title  to  land  by  an  unrecorded 
deed,  makes  himself  instrumental  in  causing  another  to  purchase 
it  from  a  third  person,  he  will  be  estopped  fi'om  setting  up  his 
title  as  against  such  purchaser/  Where  the  owner  is  informed 
of  the  sale  of  his  property  by  another,  on  credit,  and  does  not 
object  to  it,  or  gives  the  purchaser  notice  of  his  rights,  but  lies 
by  and  permits  such  purchaser  to  pay  the  purchase  money,  as  it 
becomes  due,  to  the  vendor,  and  receives  the  whole  or  a  portion 
of  it  from  the  vendor,  he  will  be  held  to  have  sanctioned  the 
sale,  and  will  not  be  permitted  to  assert  his  title  against  the  pur- 
chaser/ If  one  knowingly,  though  passively,  or  by  looking  on, 
suffers  another  to  purchase  and  expend  money  on  land,  under  an 
erroneous  opinion  of  the  title,  without  making  known  his  own 
claim,  he  is  not  permitted  to  exercise  his  right  against  such  pur- 
chaser, it  being  a  principle  in  equity  that  if  a  man  will  stand  by 
and  see  a  person  make  expensive  erections  on  land  claimed  by 
him,  and  give  no  notice  of  his  claim,  he  will  be  enjoined  from 
afterwards  makingi  claim  to  the  same,  to  the  injury  of  such  per- 
sons.' It  seems,  also,  to  have  been  adopted  as  a  principle  of  law 
that  where  one  stands  by  and  suffers  another  to  purchase  land  to 
which  he  has  a  title,  and  expend  money  thereon,  under  an  erro- 
neous impression   that  he  has  acquired  a  legal  title  thereto,  and 

1  Ford  V.  Loomis,  33  Mich.  121.  Crest  v.  Jack,  3  Watts,  239;  Brothers 

2  Parker  v.  Barker.  2  Met.  423;  v.  Porter,  6  B.  Mon.  106;  Giitliug  v. 
Stevens  v.  McNamara,  37  Me.  178.  Rodman,  6  Ind.  289;  Sisscr  v.  Jones, 

3  Mathews  v.  Light,  32  Me.  305;  3  Ired.  Eq.  652;  Foster  v.  Bi.iialow,  24 
Rangely  v.  Spring,  22  Me.  130;  Hen  Iowa,  379;  Higginbotham  v.  Burnett, 
son  v.'West,  etc.  Co.,  82  111.  224;  5  Johns.  Ch.  184;  Carr  v.  Wallace,  7 
Riley  v.  Quigley.  50  111.  304;  Slier-  Watts,  394;  Woods  v.  Wilson,  37  Pa. 
rill  V.  SherrilC  73  N.  C.  8.  St.  379;  Patten  v.  McClure,  1  M.  & 

*  Brewster  V.  Baker,  16  Barb.  613.        Y.  333;  R.  R.  v.  R.  R.,  21  N.  J.  E. 
5  Rangely   v.    Spring,   22  Me.   130;      283. 


Equitable  Estoppel.  1083 

does  not  disclose  bis  own,  he  shall  be  estopped  to  claim  the  laud.' 
A  mill-owner,  who  is  present  and  silent  at  a  public  sale  of  land 
above  his  mill,  is  estopped  to  claim  from  the  vendee  any  right  to  an 
unobstructed  use  of  the  stream,  accruing  solely  under  an  alleged 
parol  agreement  with  the  vendor- — provided  he  is  himself  cogni- 
zant of  his  own  legal  rights.'  Thus,  where  the  defendants,  own- 
ing the  lower  of  two  wing  dams  in  a  river,  by  means  of  which 
they  could  flow  back  upon  the  upper  one,  and,  having  a  right  to 
do  so,  suffered  the  purchaser  of  the  upper  dam,  who  did  not 
know  of  this  right,  to  go  on  and  make  expensive  improvements 
upon  the  works  at  the  upper  dam,  without  making  known  their 
claim  of  a  right  to  obstruct  these  works ;  although  they  saw  the 
upper  owners  making  these  expenditures,  they  were  estopped  to 
flow  back  and  injure  the  upper  works.* 

§  959.  Where,  in  an  action  to  recover  damages  of  the  defend- 
ants, for  causing  the  water  to  flow  back  upon  premises  occupied 
by  the  plaintiffs,  by  the  erection  of  a  dam,  it  appears  that  both 
the  defendants  and  their  ancestors  liad  failed  to  claim  title  to  the 
premises,  although  they  knew  that  they  belonged  to  them,  and 
that  the  plaintiffs  had  bought  them,  and  were  making  valuable 
and  permanent  improvements  thereon,  believing  that  the}'  owned 
them.  Such  silence  and  omission  to  assert  title  clearly  constitute 
an  estoppel,  and  no  evidence  could  do  away  with  the  force  of  it.^ 
The  erection  of  permanent  structures  or  buildings  on  land,  with 
the  consent  and  acquiescence  of  the  owner,  and  in  ignorance  of 
his  title,  gives  the  person,  who  makes  tlie  expenditure,  all  the 

1  Titus  V.  Morse,  40  Me;  848:  Mor-  Vantyle,  6Pa.  St.  250;Hensonv.  West- 

rison  v.  Morrison,  2  Dana,  13;  Pick-  cott,  82  111.  224;  Hatch  v.  Kimball,  16 

ard  V.  Sears,   6  A.  &  E.   409;    Snod-  Me.  146;   Commonwealth  v.  3Iotz,   10 

grass  V.  Eicketts,  13  Cal.  359;  Waters'  Pa.  St.  531;  3Lirialville  v.  Silverton,  48 

Appeal.  35  Pa.  St.  523;  Hope  v.  Law-  Pa.  St.  149;  Troxell  v.  P.  P.,  42  Pa. 

reuce,    50    Barb.    258;    Lawrence    v.  St.  513;  Eldridge  v.   Walker,  80  111. 

Luhr,  65  Pa.  St.  236;  Hall  v.  Fisher,  270. 

9  Barb.  17;  Parkhurst  v.  Van   Court-  '^  Pool  v.  Lewis,  41  Ga.  162. 
landt,  17  Johns.  15;  Maliu  v.  Malin,  1  =*  R.    R.    v.    Harpold,    19  Ind.  350; 
Wend.   625;  Adams  v.   Rockwell,  16  Frost  v.  Koon,  30  N.  Y.  428;   Wood- 
Wend.  285;  Otis  v.  Sill,  8  Barb.  102;  ward  v.  Wilcox,  27  Ind.  207. 
Bank  v.  White,  6  Barb.  589;  R.  R.  Co.  "  Brown   v.   Bowen,  30  K  Y.  519; 
V.  Dubois,  12  Wall.  47;  Rubber  Co.  v.  Wilson  v.  Vaughn,  40  Iowa,  179. 
Goodyear,  9  Wall.  788;  Chapman  v.  '••  Pratt  v.  Lamson,    2   Allen,    275; 
Chapman,  59  Pa.  St.  214;  Keeler  v.  Brown  v.  Bowen,  30  N.  Y.  519. 


1084  Affecting   Title  to  Land. 

rights  of  a  purcliaser,  and  lie  is  protected  both  at  law  and  in 
cqnit}^  in  the  enjo3'inent  of  the  frnits  of  his  money  or  labor.* 
Thus,  the  owner  of  the  legal  title  to  real  estate,  where  deeds  had 
been  duly  recorded,  was  held  estopped  to  assert  such  title  against 
one  who  exchanged  a  house  and  lot  for  such  real  estate  with  one 
then  in  the  possession  thereof  as  the  apparent  owner,  who  had 
made  valuable  improvements  thereon,  with  the  knowledge  and 
approval  of  the  true  owner,  from  whom  the  possession  had  been 
acquired,  and  who,  to  facilitate  the  exchange,  transferred  a  deed 
of  trust,  held  by  him,  from  such  house  and  lot  to  such  real  estate.' 
But  in  order  to  effect  a  result  of  this  kind,  there  must  be  a  fraud- 
ulent concealment  of  title,  or  a  misstatement  of  its  true  state 
distinguished  from  a  mere  promise  that  it  shall  not  be  enforced 
to  the  prejudice  of  the  other  party, ^  on  account  of  the  provisions 
of  the  statute  of  frauds,  heretofore  mentioned,  in  not  reducing 
the  agreement  to  writing,  however  equitable,  the  estoppel  is  to 
be  made  available  and  that  creates  one. 

§  960.  The  principles  which  estop  a  man  from  claiming  what 
is  conceded  to  be  his  own  property,  are  highly  penal  in  their 
character,  and  should  not  be  enforced  unless  there  is  a  concur- 
rence of  circumstances  such  as  are  necessary  to  the  creation  of  an 
equitable  estoppel.*  Nor  does  it  apply  to  one  who  has  no  knowl- 
edge of  his  right.  It  must  appear  that  he  was  acquainted  with 
his  title  and  willfully  concealed  or  misstated  it,  for  it  would  be 
gross  injustice  in  construing  ignorance  or  nn'sapprehension  of  the 
true  nature  of  a  riglit  into  a  forfeiture  of  a  power  to  enforce  it.* 

'  Carr  v.    Wallace,   7  Watts,  396;  Ten  Eyck  v.  Simpson,  1  Sandf.  Ch. 
Pittsburg  V.  Scott,  1  Pa.  St.  309;  Cor-  244;    Cliew   v.    Col  vert.    Walker,   54; 
belt  V.  Norcross,  3o   N.  H.  99;  ^Vat-  Patten  v.   McClure,   1   M.  &  Y.  333; 
kins   V.    Peck,    13  N.   II.   3G1;  Cum-  Hamilton  v.  Iluniilton,  4  Pa.  St.  193. 
mings  V.  Webster,  43  Me.  197;  Gatluig  ^  Perry  v.  Hull,  75  Mo.  503. 
V.    Rodman,    6    Ind.    280;    Story    v.  ^  Leland    v.    Gasset,    17    Vt.    403; 
Parker,  6  Johns.  Ch.  16G;  Carleton  v.  Bachelder  v.  Sanborn,  24  N.  H.  474. 
Red(ruigton,21N.  H.  291  ;Dinsmore  v.  ■»  Morris  v.  Moore,  11  Humph.  433; 
Ely,  IBarb.  620;R.  R.  V.  R.  R.,28I1].  Boggs  v.    Merced   Co.,   14   Cal.   279; 
437;  Corning  V.  Troy,  &e.  Co.,  44  N.  Woods   v.    Wilson,    37   Pa.    St.    379; 
Y.  577;  Arnold  v.  Comman,  50  Pa.  St.  Dougherty  v.   Marcum,  3  Head,  323; 
361;   Martm  v.   Righler,  10  N.   J.  E.  Commonwealth  v.   ]\[oltz,  10  Pa.  St. 
510;   Stiles   V.   Cowp^r,    3   Atk.    601;  527;  Crest  v.  .Jack,  3  Watts,  238;  Cur- 
Hall  V.    Fisher,   9  Barb.   17;  Higgin-  pcnter  v.  Stillwell.  12  Barb.  128. 
botham  v.  Burnett,  5  John.  Ch.  184;  ^  Tilgliman   v.   West,  8  Ired.    183; 


Equitable  Estoppel.  1085 

It  should  also  be  shown  that  the  language  or  conduct  of  the 
owner  was  the  direct  motive  or  inducement  to  the  outlay  or 
expenditure  of  the  person  who  purchased  the  land  or  made  the 
outlay,  so  as  to  afford  just  ground  for  the  inference  that  the 
wi'ong  done  by  the  former  occasioned  the  loss  incurred  by  the  lat- 
ter.' Ignorance  of  the  true  state  of  title  on  the  part  of  the  pur- 
chaser'' must  concur  with  willful  misrepresentation  or  concealment 
on  that  of  the  vendor.  An  attempt  to  deceive  will  be  immaterial 
unless  it  has  resulted  in  actual  deception  and  consequent  injury.' 
There  is  less  difference  between  legal  and  equitable  estoppels  than 
might  appear  at  first  sight,  and  both  ultimately  rest  upon  the 
same  principle.^ 

§  961.  A  party  may  be  estopped  by  his  acts  and  declarations, 
if  designed  to  influence  the  conduct  of  another,  who  relies  upon 
the  same  and  acts  aceoi'dingly,  althongh  both  were  ignorant  that 
what  is  thereby  represented  is  not  true.  Upon  the  familiar  prin- 
ciple that  if  one  of  two  innocent  parties  must  suffer,  lie  through 
whose  agency  the  loss  occurred  should  sustain  it.  If  one  is 
induced  to  purchase  an  estate  by  the  acts  or  representations  of 
another,  designed  to  influence  liis  conduct,  and  creating  a  reasona- 
ble belief  on  his  part,  under  which  he  acts,  that  he  is  thereby 
acquiring  a  valid  title  to  the  same,  the  party  who  should  thus 
have  influenced  him,  is  estopped  from  setting  up  his  own  title, 
existing  at  the  time  of  the  purchase,  against  that  of  the  purchaser. 

Eoyston  v.  Harris,   15   Ala.  309;  Dix-  ton  v.  Hogdon,  33  Me.  127;  Watkin.s 

field  V.  Newton,   41  Me.  231;  Taylor  v.  Peck,  13  N.  H.  360;  Carpenter  v. 

V.  Ely,  25  Conn.  350;  Garrity  v.  By-  Stillwell,  11    N.   Y.  61;  Darlington's 

iugton,  12  Cal.  426;  Odlin  v.  Gove,  41  Appeal,   37   Pa.     St.    430;    Morris   v. 

N.  II.  465;  McAfferty  v.   Coiiover,  7  Moore,     11    Humph.    433;    Ware*  v. 

Ohio  St.  99;  Newman  v.  Edwards,  34  Cowles,  24  Ala.  446;  Brewerv.  BreWer, 

Pa.  St.  32;  Clabaugh  v.  Byerly,  7  Gill,  19  Ala.  431;  Otis  v.  Sill,  8  Barb.  102; 

351;  Sellers   v.    Davis,   4    Yerg.  403;  Cambridge  v.  Littlefield,  6  Cush.  210. 
Barham  v.   Turbeville,-  1  Swan.  437;  '^  Ferris  v.  Coover,  10  Cal.  589;  Crest 

Morris  v.  Moore,  11  Humph.  433;  Pat-  v.   Jack,  3    Watts,    238;   Hepburn  v. 

ton  V.  McCiure,  M.  &  Y.  333;  Dough-  McDowell,  17  S.  &  R.  3X8. 
erty  v.  Markham,  3  Head,  323;  Cora-  ^  Casey  v.  Inloes,  1  Gill,  430;  Law 

raonwealth  v.   Moltz,  10  Pa.  St.  537;  rence  v.  Brown,  5  N.  Y.  394;  Hill  v,. 

Gunu  V.  Bales,  6  Cal.  263;   Robinson  Eplcy,    31    Pa.    St.    331;  Goodson   v, 

V.    Justice,    2    Pa.   St.    19;   Odlin  v.  Beacham,  24  Ga.  150. 
Gove,  41  N.  H.  465.  -i  Jackson  v.    Waldron,  18  Wend 

'  Jones  v.  Cowles,  26  Ala.  613;  Mor-  178. 


1086 


Affecting   Tfile  to  Land. 


It  is  enough  that  the  latter  has  been  misled  by  the  acts  or  dcclara 
tions  of  the  former,  if  they  were  iuteiidecl  to  influence  and  did 
influence  his  conduct,  although  no  fraud  was  designed.' 

§  962.  The  language  of  Lord  Campbell  in  deiiuing  what  would 
constitute  an  estoppel,  will  furnish  a  broader  and  better  rule  than 
that  which  requires  j)Ositive  fraud  as  one  of  its  essential  elements: 
"If  a  party  willfully  makes  a  representation  to  another,  meaning 
it  to  be  acted  upon,  and  it  is  so  acted  upon,  that  gives  rise  to 
what  is  called  an  estoppel."  "  The  party  setting  up  such  a  bar  to 
the  receptiou  of  the  truth,  must  show  that  there  was  a  willful 
intent  to  make  him  act  on  the  faith  of  the  representation,  and 
that  he  did  so  act."  And  by  "willfully,"  as  explained  in  Free- 
man V.  Cook,  "  it  must  be  understood,  if  not  that  the  party 
represents  that  to  be  true  which  he  knows  to  be  untrue,  at  least 
that  he  means  his  representation  to  be  acted  upon,  and  that  it  is 
acted  upon   accordingly."'*     And  if,  whatever  a  man's  real  inten- 


'  Canal  Co.  v.  Lewis,  12  N.  J.  E. 
323;  Waters'  Appeal,  35  Pa.  St.  523; 
Freeniiin  v.  Cooke,  2  Exch.  G63;  Cor- 
ni.sb  V.  Abbiugdon,  4  Hurls.  &  N.  549; 
Jewettv.  Miller,  10  N.  Y.  402;  Mc- 
Cune  V.  McMicbael,  29  Ga.  312;  Til- 
ton  V.  Xelsou,  27  Barb.  595;  Black- 
wood V.  Jones,  '4  Jones  Eq.  54; 
Snodgrass  v.  Ricketts,  13  Cal.  359; 
Barnes  v.  McKay,  7  lud.  301;  Morgan 
V.  Spangler,  14  Ohio  S.  102;  Jordan  v. 
Money.  5  H.  L.  C.  212;  Howard  v. 
Hudson,  2  E.  &  B.  13;  Blair  v.  Wait, 
69  N.  Y.  113;  Rosenthal  v.  Mayhugh, 
33  Ohio  S.  155;  Nichols  v.  Arnold,  8 
Pick.  172;  Pence  v.  Arbuckle,  22 
Minn.  417;  Howry  v.  Eppinger,  34 
Mich.  39;  Foster  v.  Newland,  21 
Wend.  94:  Crockett  v.  Lashbrook,  5 
Mou.  530;  Davis  v.  Thomas,  5  Leigh, 
1;  Bank  v.  Wollastou,  3  Harr.  90; 
Hicks  V.  Cram,  17  Yt.  449;  Kinnej*  v. 
Fariieswtnih,  ]7Coiiu.  355;  Common- 
wealtli  V.  Moltz,  10  Pa.  St.  527;  Cope- 
laud  V.  Copeland,  28  Me.  525;  Otis  v. 
Sill,  8  Barb.  102;  Taylor  v.  Zepp,  14 
Mo.  482;  Crowuover  v.  Handle,  24  La. 
Ann.  409;  Robinson  v.  Justice,  2  Pa. 


St.  22;  Beaupland  v.  McKeen.  28  Pa. 
St.  124;  Rice  v.  Bunce,  49  Mo.  231; 
Pickard  v.  Sears.  6  A.  &  E.  409;  Fos- 
ter V.  Dawber,  6  Exchq.  854;  Knouff 
V.  Thompson.  16  Pa.  St.  361;  Ed- 
wards V.  Chapman,  1  M.  &  W.  231; 
Cary  v.  Wheeler,  14  Wis.  285;  New- 
man V.  Edwariis,  34  Pa.  St.  34;  Swaim 
V.  Seameus,  9  Wall.  254;  Guthrie  v. 
Quinn,  43  Ala.  561;  Anderson  v. 
Warue,  71  111.  20 ;  Mahan  v.  Dubu- 
clet,  27  La.  Ann.  45;  Bank  v.  Ever- 
man,  52  Miss.  500;  Chapman  v.  Chap- 
man. 59  Pa.  St.  214;  Welch  v.  Bank, 
94  III  191;  Dahlman  v.  Forster,  55 
Wis.  382;  Hart  v.  Giles,  67  Mo.  175; 
Cooper,  in  re,  93  N.  Y.  507;  Veedcr  v. 
3Iudgett,  95  N.  Y.  295;  Spaulding  v. 
Drew,  55  Vt.  253;  Sawyer  v.  Pcrrj', 
62  Iowa,  238;  Slate  v.  Jersey  City,  40 
N.  J.  L.  483;  Graves  v  Rogers,  59  N. 
H.  452. 

^  Howard  v.  Hudson,  2  E  &  B.  14; 
Andrews  v.  Lyons,  11  Allen,  349; 
Gurney  v.  Evans,  3  II.  &  N.  122; 
Summers  v.  Soloman,  7  E.  &  B.  879; 
Ramazotti  v.  Bowring,  7  C.  B.  (X.  S.) 
857;  Castellari  v.  Thompson,  13  C.  B. 


Equitable  Estoppel.  1087 

tion  may  be,  lie  so  conducts  himself  that  a  reasonable  man  would 
lake. the  representation  to  be  true,  and  believe  that  it  was  meant 
that  he  should  act  upon  it,  and  did  act  upon  it,  truly,  the  party 
making  the  representation  would  be  equally  precluded  from  con- 
testing; its  truth.  But  a  dischiimer  made  to  one  who  was  not 
thereby  influenced  to  rely  upon  it,  and  did  not  actually  rely  upon 
it  in  his  acts,  in  such  a  manner  that  it  would  work  a  fraud  upon 
him  to  have  it  denied  or  retracted,  would  not  work  an  estoppel.' 
But  where  one,  about  to  purchase  a  parcel  of  land,  inquired  of  B. 
if  he  had  any  claim  upon  it,  and  he,  by  forgetfulness  and  honest 
mistake,  informed  the  inquirer  that  he  had  not,  when  in  fact  he 
had,  he  was  estopped  to  set  it  up  against  this  purchaser  who  had 
acted  upon  the  faith  of  his  representation.'' 

§  963.  Ignorance  of  the  truth  of  the  representation  will  not 
avoid  the  estoppel,  if  the  party  has  the  knowledge,  or  if  his 
ignorance  is  the  result  of  negligence.^  Thus,  where  a  husband 
and  wife  were  tenants  by  entirety,  and,  after  his  death,  the  estate 
was  sold,  and  the  widow,  ignorant  of  her  rights  as  survivor,  and 
in  good  faith,  encouraged  a  purchaser  to  bid  for  and  take  a  deed 
of  it,  she  and  her  heirs  were  held  to  be  estopped  thereby  to  set  up 
a  claim  to  the  estate.''  In  order,  however,  to  work  an  estoppel 
i7i  pais,  the  acts  and  declarations  relied  on  must  have  been 
accompanied  with  an  intention  and  design  that  they  should  be 
acted  upon  by  the  party  who  sets  up  the  estoppel,  and  he  must 
have  acted   upon  them   accordingly.^     iSilence   alone  would  not 

(K  S.)  105;  Price  V.  Groom,  2  E.  &  B.  v.  Finkler,  9  Mich.  131;  Beardsley  v. 

512;  Waller  v.    Drukeford,  1  E.  &  B.  Foot,  1-1  Ohio  St.  416. 

749;  Haines  V.  East.  &c.  Co.,  11  Moo.         ^  Calhoun  v.  Richardson,  30  Conn. 

P.    C.    37;    Simpson   v.  Ins.   Co.,    3  210;   Hoxj^  v.  Ins.  Co..  33  Conn.  31; 

C.  B.  (N.  S.)  289;  Clark  v.  Hart,  (i  H.  Smith  v.   Newton,  38  111.  230;  Smith 

L.  C.  650;  White  V.  Greenish,  11  C.  B.  v.    Cramer,    39   Iowa,   413;   Slim   v. 

(X.  S.)  229;   Martin  v.  Gray,  14  C.  B.  Croucher,  1   De  G.  F.  &  J.  518;  Pres- 

(N.   S.)  824;    Slepheus  v.  Reynolds,  5  ton  v.  Mann,  25  Conn.  118. 

H.  &  N.  513.  ■■  Maple  v.  Kussart,  53  Pa.  St.  348. 

'  Carpenter  v.   Thurston,    24    Cal.  »  Turner   v.    Coffin,  12  Allen,  401; 

283;Mahoucyv.  Van  Winkle,  21  Cal.  Brown    v.    Bowen,    30  N.    Y.    519; 

580.  Plumb  V.  Ins.  Co.,  18  N.  Y.  392;  Rus- 

2  Neville   v.  Wilkinson,    1    Brown  sell  v.  Moloney,  39  Vt.  584.    Andrews 

C.  C.  543;  Smith  v.  Cramer.  39  Iowa,  v.    Lyon,    11    Allen.    350;    Kuhl    v. 

413;  Ricev.  Bunce,  49  Mo.  231;  Cook  Mayor,   23   N.   J.    E.  84;  Plumer  v. 

Lord,  9  Allen,  457. 


1088  Affecting   Title  to  Laxd. 

have  that  effect  unless  it  were  in  itself  fraudulent.'  As,  for 
example,  one  knowing  his  title,  should  willfully  conceal  it,  and 
allow  an  innocent  party  to  go  on  and  be  misled  by  liis  silent 
acquiescence.''  But  if  the  party  purchasing,  in  such  a  case,  were 
cognizant  of  the  facts,  lie  could  not  avail  himself  of  his  ignorance 
or  mistake  in  respect  to  their  legal  effect.' 

§  964.  "When  a  title  has  been  once  duly  recorded,  no  respon- 
sibility will  arise  from  a  failure  to  take  further  or  immediate  steps 
to  warn  subsequent  purchasers,  who  may  fairly  be  presumed  to 
have  taken  the  means  pointed  out  by  law,  and  acquired  all  the 
knowledge  which  it  is  important  for  them  to  have.*  But  this  is 
applicable,  only,  in  the  case  where  the  foundation  of  the  estoppel 
is  in  silence  or  acquiescence,  for  when  the  owner  concurs  in  a 
sale,  by  participating  in  it  at  the  time,  it  becomes  his  own  act,  and 
he  certainly  cannot  be  allowed  to  make  his  own  good  faith  a 
reason  for  throwing  the  loss  upon  third  persons  who  are  equally 
innocent.  He  will  under  such  circumstances  be  estopped  from 
asserting  his  rights,  notwithstanding  his  ignorance  of  their  exist- 
ence at  the  time  when  the  estoppel  originated,  and  he  will  not  be 
allowed  to  aver  that  he  was  under  a  misapprehension  as  to  their 
nature  or  extent  in  point  of  law,  unless  he  can  show  he  was  labor- 
ing under  some  want  of  knowledge  or  mistake  of  fact.'  Con- 
structive fraud  will  be  as  effectual  as  actual  fraud  in  justifying 
any  court  in  setting  aside  the  provisions  of  the  statute  of  frauds, 
and  decreeing  a  trust  without  written  evidence  ;  it  is  only  where 
silence  becomes  a  fraud,  that  it  postpones."  There  is  a  wide  differ- 
ence between  silence  and  encouragement,  and  a  man  who  induces 

J  ]Map]e  V.  Kussart,  53  Pa.  St.  348.  Ga.  485;  Fisher  v.  Mos.smaii,  11  Ohio, 

«  Odlin  V.  Gove,  41  N.  H.  473;  Gov-  42;   Knouff  v.  Tliompson,  16  Pa.  St. 

ernor  v.  Freemau,  4  Dev.  L.  472;  Bird  357;  Hill  v.  Epley,  31  Pa  St.  331. 

V.  Benton,  2  Dev.  L.  179.  ^  Proctor  v.  Keith,  12  B.  Mon.  252; 

3  Tiltou  V.   Nelson,   27  Barb.  595;  Miller  v.  Miller,  60  Pa.  St.  16. 

Storrs  V.  Barker,    6   .Johns.   Ch.  166;  *  Blackwood  v.  Jones,  4, Jones  E.  56; 

Hobbs  V.  Norton,  1  Vern.  136;  Huns-  Cocbrau  v.  JIarrow,  22111.  45;  AVatkins 

den  V.  Cheney,  2  Vern.   150;   Raw  v.  v  Peck,  13  N.  H.  373;  Davis  v.  Davis, 

Pote,  2  Vern.  239;  Wood  v.  Griffin,  46  26  Cal.  42;  Hill  v.  Epley,  31   Pa.  St. 

N.  H.  237;   Drew  v.   Kimball,  43  N.  331;  I^ickard  v.  Sears,  6  A.  &  E.  469; 

H.  282.-  Wells  v.  Pierce,  27  N.  II.  511;  Drew 

*  Mayo  V.  Cartrlght,  30  Ark.  407;  v.  Paist,  30  N.  H.  842;  Gregg  v.  Wells, 

Goundie  v.  Water  Co.,  7  Pa.  St.  233.  10  A.  &  E.  90. 
See  Ante,  §  893;  Brown  v.  Tucker,  47 


Equitable  Estoppel.  1089 

another  to  buy  by  positive  assertion  may  be  estopped,  although 
free  from  any  conscious  purpose  to  deceive,  on  the  general  prin- 
ciple that  as  between  two  innocent  parties  the  loss  should  be  borne 
by  him  through  whose  act  or  omission  it  is  due. ' 

§  965.  When  one,  whose  title  is  not  recorded,  and  cannot  be 
learned  by  the  ordinary  means  of  inquiry,  lies  by,  for  a  considera- 
ble length  of  time,  without  warning  others  who  are  making 
expenditures  on  his  land,  under  a  confidence  induced  by  a  false 
show  of  title,  equity  will  view  his  conduct  as  a  fraud  and  grant 
relief  to  those  whom  his  negligence  has  injured.^  Where  a  per- 
son holding  a  title  to  real  estate,  who  withholds  his  deed  from 
record,  and  fails  in  any  other  manner  to  make  known  his  right  or 
title,  but  permits  the  grantor  to  claim  ownership  of  the  land  and 
sell  it  to  another,  who  takes  possession  thereof,  under  claim  of 
ownership  arising  from  such  purchase,  and  erects  thereon  valua- 
ble improvements,  with  the  knowledge  and  without  any  objection 
on  the  part  of  the  real  ownei',  the  latter  will,  in  equity,  be  estop- 
ped from  afterwards  setting  up  the  title  which  he  has  so  long  con- 
cealed.' Thus,  where  a  former  owner  of  lots,  who  executed  a 
deed  for  the  same,  leaving  a  blank  for  the  grantee's  name,  when 
applied  to  for  information  as  to  the  title,  by  a  party  about  to  pur- 
chase the  same  of  one  whose  name  had  been  inserted  in  the  deed, 
disclaimed  any  title  in  himself,  and  stated  that  the  grantee  was 
the  owner,  and  upon  this  assurance  the  purchase  was  made.  These 
facts  constituted  a  complete  estoppel  in  equity  on  the  original 
owner,  and  that  he  could,  not  afterwards  claim  title.  A  court  of 
equity  has  jurisdiction  to  establish  a  title  to  real  estate  by  estop- 
pel against  a  former  owner,  who,  by  his  acts  and  representations, 
has  induced  another  to  purchase  from  his  grantee  under  a  void 
deed." 

§  96f).  It  is  difficult  to  draw  the  precise  line  how  far  positive 
fraud  must  enter  into  the  act  or  declaration  of  the   party  who  is 

'  Blinkerhoff  v.  Lansing,  4  Johns.  Pence    v.    McPlierson,    -30    Ind.    66; 

Cli.  70;  Beaupland  v.  McKean,  28  Pa.  Lucas  v.  Hart,  5  Iowa,   415;  Galling 

St.  124;  Robinson  V.  Justice,  2  Pa.  St.  v.  Rodman,  6  Ind.  289;  Riley  v.  Quig- 

19;   Ormsby  v.    Ihmsen,    34  Pa.    St.  ley,  59  111.   304;    Couch   v.  Sutton,  1 

462.  Grant  Cas.  114. 

"  Woods  V.  Wilson,  37  Pa.  St.  379.         *  Wade  v.  Bunn,  84  III.  117. 

*  Foster  v.  Bigelow,  14  Iowa,  379; 
Vol.  I.— 69 


1090 


Affecting  Title  to  Land. 


souglit  to  be  estopped.  But  that  it  must  liave  tlie  same  effect 
upon  the  party  wlio  sets  it  up  as  an  estoppel,  is  a  rule  well  pet- 
tied.  The  party  will,  in  many  instances,  be  concluded  by  his 
declarations  or  conduct,  which  have  influenced  the  conduct  of 
another  to  his  injury.  The  part}',  in  such  cases,  is  estopped  from 
denying  the  truth  of  his  admissions.  But,  to  the  application  of 
this  principle  with  respect  to  title  to  property,  it  must  appear, 
first,  that  the  party  making  the  admission  by  his  declarations  or 
conduct  was  apprised  of  the  true  state  of  his  own  title  ;  second, 
that  he  made  the  admission  with  the  express  intention  to  deceive, 
or  with  such  careless  and  culpable  negligence  as  to  amount  to 
constructive  fraud;  third,  that  the  other  party  was  not  only  des- 
titute of  all  knowledge  of  the  true  state  of  the  title,  but  of  the 
means  of  acquiring  such  knowledge  ;  and,  fourth,  that  he  relied 
directly  upon  such  admission,  and  will  be  injured  by  allowing  its 
truth  to  be  disproved.'  "  The  primary  ground  of  the  doctrine  is 
that  it  would  be  a  fraud  in  a  party  to  assert  what  his  previous 
conduct  had  denied,  when,  on  the  faith  of  that  denial,  others 
have  acted.  The  element  of  fraud  is  essential,  either  in  the 
intention  of  the  party  estopped,  or  in  the  effect  of  the  evidence 
which  he  attempts  to  set  up.-'* 


'  Boggs  V.  Merced  Co.,  14  Cal.  367; 
Gliddeii  v.  Strupler,  53  Pa.  St.  400; 
Green  v.  Prettyman,  17  Cal.  401;  Dann 
V.  Sparrier,  7  Ves.  280;  Barnard  v. 
Wallace,  Cr.  &  Pb.  85;  Marker  v. 
Marker,  9  Hare,  85;  Hooper  v.  Clark, 
2:3  L.  J.  Cii.  467;  Ramsden  v.  Dy- 
son, L.  R.  1  App.  129;  Snellgrove  v. 
Suellgrove,  4  Dess.  274;  Buckingham 
V.  Smith,  10  Ohio,  288;  Rlngro  v. 
Warder,  6  B.  Mou.  514;  Whittaker  v. 
AVilliams,  20  Couu.  98;  Lewis  v.  San 
Antonio,  7  Tex.  288;  Tilghman  v. 
West.  8  Ired.  Eq.  18?-;  Dixfield  v. 
Newton,  41  Me.  221;  McAfferty  v. 
Conover,  7  Ohio  St.  99;  Newman  v. 
Edwards,  34  Pa.  St.  32;  Danforth  v. 
Adams,  29  Conn.  107;  R.  R.  Co.  v. 
Harpold,  19  Ind.  347;  Tongue  v.  Nut- 
well,  17  Md.  312;  Robinson  v.  Jua- 
tice,  2  Pa.  St.  19. 

=  Hill  V.    Eplcy,    31    Pa.    St.    334; 


Copeland  v.  Copeland,  28  Me.  539; 
Whitaker  v.  Williams,  20  Conn.  104; 
Delaplaine  v.  Hitchcock,  6  Hill,  14; 
Tolman  v.  Sparhawk,  5  Met.  475; 
Brewer  v.  R.  R.,  5  Met.  478;  IMc- 
Crackeu  v.  San  Francisco,  16  Cal. 
626;  Abel  v.  Fitch,  20  Couu.  90;  Pen- 
nell  V.  Hinman,  7  Barb.  644;  Pearl  v. 
Oliphant,  15  Pa.  St.  343;  Dyer  v. 
Cady,  20  Conn.  563;  Truscott  v. 
Davis,  4  Barb.  495;  Parker  v.  Brown, 
15  N.  H.  176;  Califlf  v.  Hillhouse,  3 
Minn.  311 ;  Martin  v.  Angell,  7  Barb. 
407;  Jackson  V.  luabinit,  2  Hill  Ch. 
411;  Decherd  v.  Blanton,  3  Sneed, 
373;  Lounsberry  v.  Depew,  28  Barb. 
44;  Brant  v.  Iron  Co.,  93  U.  S.  326; 
Henshaw  v.  Bissell,  18  Wall.  ^71; 
Boggs  V.  Mining  Co.,  14  Cal.  368; 
Davis  V.  Davis,  26  Cal.  23;  Conunon- 
weallh  V.  IMoltz,  10  Pa.  St.  527;  Har- 
ris V.   Marchunt.   1   Curt.  C.  C.  136: 


Equitable  Estoppel.  1091 

§  967.  The  various  circumstances  which  render  the  applica- 
tion of  estoppel  in  pais  necessary  to  titles  of  real  estate  being  of 
so  varied  a  nature  that  it  is  next  to  impossible  to  lay  dov/n  posi- 
tive  rules   regarding   their   application,    it    will,    therefore,    be 
necessary  to  illustrate  the  principle  of  this  branch  of  estoppel  by 
the  citation  of  a  variety  of  analogous  cases.    An  estoppel  in  pais, 
where  it  applies,  is  as  effectual  as  a  deed,  but  no  more  so ;  so 
that,  if  the  party  doing  the  act  could  not  have  made  a  deed  of 
the  land  in  question,  his  act  cannot  create  an  estate  by  estoppel 
in  the  same.>     In  the  next  place,  a  party  who  insists  upon  the 
acts  of  another  as  working  an  estoppel,  must  show  that  he  acted 
upon  the  same,  and  that  it  formed  the  inducement  wliich  led  him 
at  the  time  to  do  what  he  did.     Thus  where  an  infant,  whose 
land  has  been  irregularly  sold  during  his  minority,  made  declara- 
tions, after  he  became  of  age,  expressing  his  satisfaction  of  the 
sale ;  it  was  held  not  to  he  an  estoppel  to  his  claim  to  the  estate, 
because,  being  made  long  after  the  sale,  it  could  have  formed  no 
inducement  to  the  party  to  make  the  purchase.^     And  where  one 
procures  an  order  of  a  count}^  court  for  the  sale  of  land,  as  of 
land  then   claimed   by  the  county,  and  in   the  order  the  land  is 
spoken   of  as  that  "  formerly  owned"  by  the  person   procuring 
the  oi'der,  he  is  estopped  to  deny  or  recall  his  recognition  of  title, 
after  another  has  acted  upon   it   by  purchasing  the  land   of   the 
county,  paying  the  purchase   monej',  and  making  improvements 
thereon.'     So,  whore  a  husband  had   induced   his  wife  to  marry 
him  by  representations  that,  in  consideration  of  the  marriage,  his 
father  would   convey  certain  lands  to  her,  which  was  done,  he 
was  estopped   fi'om   setting  up  a  title  to  the  lands  in   himself,  to 
override  her  title  under  the  father's  deed.'' 

§  968.  Acts  and  declarations  of  a  positive  character  are  not 
the  only  grounds  of  estoppel.  Under  some  circumstances,  one 
may,  by  being  silent  or  passive  when  he  ought  to  speak  or  act, 

Zuchtman  V.  Roberts,    109   Mass.  53;  Beaupland  v.  McKean,  28  Pa.  St.  124. 

Bigelow  V.  Topliir,  25  Vt.  273;  Carter  ^  Ackley   v.    Dygert,  33  Barb.  176; 

V.  Champion,  8  Conn.  554;  Norton  v.  Allen  v.  Allen,  45  Pa.  St.  473. 

Kearney,  10  Wis.  443;  Vilas  V.  Mason,  ^  Stevenson   v.   Saline   Co.,  65  Mo. 

25  Wis.  510;  McLean  v.  Dow,  42  Wis.  425. 

610;  Kingman    v.   Graham,    51    Wis.  ■*  Chapman  v.  Chapman,  59  Pa.  St. 

202.  214;    Fa.vton    v.    Faxton,    28  Mich. 

'  Lowell   V.  Daniels,    2   Gray,  169;  159. 


1092 


Ap'feoting  Title  to  Land. 


estop  himself  from  claiming  liis  rights.  Questions  of  this  kind 
have  most  frequently  arisen  in  cases  where  one,  having  a  claim 
upon  land,  has  stood  by,  ur  knew  of  a  sale  of  it  being  made  as  the 
property  of  another,  without  disclosing  his  claim.  If  a  man 
holds  a  title  to  his  lands  by  deed  which  has  been  duly  recorded, 
it  is  all  the  notice  he  is  bound  to  give  so  long  as  he  remains  pas- 
sive ;'  it  is  only  when  he  sees  another  purchasing  land  u])on 
which  he  has  some  uni-ecorded  lien  or  charge,  of  Mdiich  the  other 
is  ignorant,  tJiat  he  is  bound  to  give  notice  thereof.  And,  upon 
failing  to  do  so,  he  is  estopped  to  set  up  such  claim  against  the 
purchaser."  An  owner  of  real  property  is  under  nb  obligations 
to  attack  a  forged  deed  of  his  property ;  and  the  facts  that  he 
knew  of  the  existence  of  such  a  deed,  and  knew  that  through  a 
series  of  convej'ances  the  property  had  been  purchased  by  an 
innocent  purchaser  for  value,  without  I'emoustrance  on  his  part, 
gives  such  a  purchaser  no  title  to  the  land.' 

§  969.  No  man  can  set  up  another's  act  or  declaration  as  the 
ground  of  an  estoppel,  unless  he  has  himself  been  misled  or 
deceived  by  such  act  or  declaration;  nor  can  he  set  it  up,  where 
he  knew,  or  liad  tlie  same  means  of  knowledge,  as  to  the  truth  of 
the  statement,  as  the  other  part}'.*  The  same  rule  applies  where 
the  owner  of  land  has  stood  by  and  allowed  another  to  go  on  and 
make  improvements  upon  it,  in  the  mistaken  belief  that  he  was 
the  owner  thereof.  If  the  true  owner  not  only  knows. of  such 
expenditures  being  incui'red.  but  also  that  the  other  part}'  is 
doing  it  under  a  belief  that  he  ov;ns  the  land,  it  is  regarded  as  a 
fraud  to  suffer  him  to  goon  without  notice,  and  he  would  thereby 


'  Patlcrson  v.  Esterling,  27  Ga. 
207;  Fisher  v.  ]\Iossuiau,  11  Ohio  St. 
42;  Tongue's  Lessee  v.  Nutwell,  17 
M(l.  212"^;  Hill  V.  Epley,  81  Pa.  St. 
332;  Odlin  v.  Gove,  41  X.  II.  477; 
Briuekerhoff  v.  Lansing,  4  .Tohns. 
Ch.  65;  Bigelow  v.  Toplifl,  25  Yt. 
273;  Carter  V.  Cliampion,  8  Conn.  594; 
3LiS()n  V.  Philhiook,  Gl)  Me.  57; 
Moore  V.  B;)\vman.  47  N.  IL  499; 
Knouflf  V.  Thompson.  16  Pa.  St.  364; 
Mayo  V.  Cartright,  30  Ark.  407;  Cla- 
baugli  V.  Ryerly,  7  Gill,  354;  Goundie 
V.  Water  Co.,  7  Pa.  St.  233. 


'Gray  v.  Bartlett,  20  Pick.  180; 
Shade  v.  Bessiger,  3  Neb.  140;  Brown 
V.  Tucker,  47  Ga.  485;  Rice  v.  Bunce, 
49  Mo.  231;  Dellett  v.  Kemble,  23  N. 
J.  E.  58;  Whitman  v.  Boiling,  47  Ga. 
125. 

3  Mcley  V.  Collins,  41  Cal.  663. 

*  Ormsby  v.  Ihmsen,  34  Pa.  St.  462; 
Gray  v.  Bjirtlett,  20  Pick.  193;  Hill  v. 
Epley.  31  Pa.  St.  331;  Plumer  v. 
Mold,  22  Minn.  15;  McCuue  v.  Mc- 
Michael,  29  Ga.  312;  Jewett  v.  Miller, 
10  N.  Y.  406;  Ferris  v.  Coover,  10 
Cal.  589. 


Equitable  Estoppel.  1093 

be  estopped  to  claim  the  improvements,  &c.,  and  in  some  cases, 
even  the  land  itself.'  Thus,  where  A.  sold  land  to  B.  by  parol, 
Avithout  giving  anj  deed,  and  repi-esented  to  0.  that  he  had  con- 
veyed it  to  B,,  and  thereupon  C.  purchased  the  estate  of  B.  and 
made  improvements  upon  it,  it  was  held  that  A.  was  estopped  to 
set  up  a  title  against  C.  on  the  ground  that  he  had  not  made  a 
deed  to  B,"  The  legal  owner  of  land,  knowing  of  a  sale  thereof 
b}'  the  ecpiitable  owner,  is  estopped  by  a  settlement  with  the  lat- 
ter from  resisting  the  conveyance,  upon  the  ground  that  the 
latter  had  not  paid  him  for  the  land.^  So,  where  a  person  sur- 
renders a  deed  by  which  his  claim  to  land  could  be  supported, 
and  directs  his  grantor  to  make  a  deed  to  another,  he  is  estopped 
from  introducing  secondary  evidence  to  defeat  a  title  made  with 
his  own  knowledge  and  consent,  and  for  which  he  received  a  sat- 
isfactory consideration.''  So,  where  A.  had  a  legal  title  to  certain 
personal  property,  of  which  B.  was  nominal  owner,  and  which 
was  in  possession  of  C,  as  B.'s  bailee;  A.,  without  informing  C 
of  his  claim  to  the  property,  emploj'ed  him  to  purchase  it  from 
B.,  which  C.  endeavored  to  do,  but  without  success.  C.  subse- 
quently purchased  the  property  from  B.  for  himself.  C.  had  a 
right  to  purchase  the  property  for  his  own  use,  and  A.  was 
estopped,  as  against  C,  from  denying  B.'s  title.* 

§  970.  Au  estoppel  in i^ais,  as  affecting  the  title  to  land,  may 
be  further  illustrated  bj^  referring  to  the  following  leading  cases, 
in  which  similar  questions  were  raised.  Thus,  a  husband  and  wife 
having  mortgaged  an  estate  to  loan  commissioners,  with  a  power 
of  sale,  the  husband  applied  to  them  to  make  sale  of  it,  and 
induced  the  officers  of  a  bank,  who  held  a  judgment  against  him, 
to  purchase  the  mortgaged  estate  for  the  purpose  of  satisfying 
their  debt.     The  bank  subsequently  sold   the   estate.     The  sale 

'  McGarrity   v.  Byington,    13    Cal.  McPherson,  30   Ind.  66;   Robiuson  v. 

426;  Knouff  v.  Tliompsou,  16  Pa.  St.  Justice.  2  Pa.  St.  11. 

364;  Gatling  v.   Rodman,  6  lud.  2S9;  ==  Koj^  v.  Test,  33  111.  316;  Favill  v. 

Odlin  V.  Gove,  41   N.    H.  447;  R.  R.  Roberts,50  N.Y.  223;  O'Neal  v.  Auten, 

V.    Strauss,   37   Md.   237;    DcHette  v.  58  111.  148. 

Kemble,  23  N.    J.  E.  58;  Goundic  v.  »  O'Neal    v.    Auten,    58    111.    148; 

Water  Co.,  7  Pa.  St.  233;  Coleman  v.  Phelps  v.  Seely,  23  Gratt.  573. 

Morrison,  1  A.  K.  Marsh.  406;  East  v.  ■»  Schade  v.  Bessinger,  3  Neb.  140. 

Dolihite,  72  N.  C.  562;  Chapman  v.  *  Hill  v.  Williams,  33  Ga.  39. 
Chapman,  59  Pa.  St.  314;  Pence  v. 


1094  Afff.cting   Title  to  Land. 

being,  for  some  reason,  irrci^nlar  on  the  part  of  the  commission- 
ers, tlie  title  defective,  after  the  husband's  death,  his  heir-at-law 
attempted  to  recover  the  land  on  that  ground.  It  being  shown 
tliat  the  fatlier  was  cognizant  of  the  facts,  though  not  of  their 
legal  effect,  and  had  induced  the  bank  to  purchase  as  if  the  title 
was  valid,  he  and  all  privy  in  estate  with  him  were  estopped  from 
setting  up  an  adverse  title.'  In  another,  the  plaintiff's  daughter, 
whose  heir  lie  was,  made  a  will  while  cctvert,  devising  her  real 
estate  to  her  husband.  The  husband  offered  the  land  for  sale, 
and  the  father,  supposing  the  will  to  be  valid,  advised  the 
defendant  to  purchase  it,  stating  at  the  time  that  he  had  no  claim 
to  it.  Subsequently,  the  plaintiff  ascertained  that  the  devise, 
being  that  of  a  feme  covert,  was  void,  and  claimed  the  estate.  He 
was  estopped  to  set  up  a  title  against  one  whom  he  had  thus  mis- 
led as  to  the  true  state  of  the  title."  So,  where  a  son  settled 
upon  his  wife,  at  marriage,  a  term,  in  the  presence  of  his  mother, 
stating  to  her  that  the  same  was  to  come  to  him  at  his  mothers 
death.  This,  though  done  in  his  mother's  presence  and  hearing, 
and  being  witness  to  the  deed,  was  not  denied  by  her — she  did 
not  then  know  that  she  had  a  claim  to  the  term  as  a  tenant  in 
tail.  She  was  thereby  estopped  to  set  up  any  greater  estate  in 
the  term  than  one  for  her  own  life.'  Thus,  one  having  a  claim 
upon  land  was  present  at  the  sale,  and,  to  an  inquiry,  stated 
that  his  claim  had  been  settled,  he  was  estopped  to  set  up  the 
same  against  the  purchaser.*  So  the  true  owner  was  estopped, 
where  a  sale  was  made  by  another  in  his  presence,  and  the  pur- 
chaser was  instigated,  by  the  one  who  had  the  title,  to  buy  the 
land."  One  who  had  been  employed  to  purchase  land  for 
another,  Avho  bought  and  paid  for  the  same,  on  the  belief  that  he 
had  obtained  thereby  a  good  title,  was  estopped  to  set  up  a  pre- 
existing adverse  title,  which  ho  had  purchased  after  the  purchase 
made  by  the  tenant."  An  heir  who  assents  to  a  void  decree  and 
sale,  and  acts  as  commissioner  to  carry  it  into  effect,  passes  his 
own  title  in  equity.' 


»  Tilton  V.  Nelson,  27  Barb.  595.  ^  Snodgrass  v.  Ricketts,  13  Cal.  359. 

"^  Storrs  V.  Barker,  6  Johns.  Cli.  166.  «  Bcauplaud  v.  McKeen,  28  Pa.  St, 

3  Hunsden  v.  Cheyney,  2  Vern.  150.  124. 

*  Blackwood    v.    Jones,    14    Jones  "^  Salmon  v.  Price,  13  Ohio,  308. 
Eq.  54. 


Equitable  Estoppel.  1095 

§  971.  The  owner  of  lands  tlirongli  which  a  railroad  passed, 
having  previonsl}-  granted  the  right  of  way  to  the  company,  was 
apprised,  when  the  agents  of  the  company  entered  on  his  lands 
to  open  the  road,  and  knew  that  they  claimed  the  right  under 
his  deed,  but  raised  no  objection,  and  took  a  contract  for  supply- 
ing materials  used  in  the  construction  of  the  road.  He  was 
estopped  from  afterwards  bringing  trespass  against  the  members 
of  the  company,  although  the  instrument  by  which  he  conveyed 
the  right  of  way  might  be  inoperative  as  a  deed.'  Acquiescence 
by  a  land-owner  in  the  occupation  of  his  land  for  the  road-bed  of 
a  railway  company  will  preclude  him  from  maintaining  eject- 
ment for  the  land  on  which  the  road-bed  is  built."  AVhere  a 
creditor  has  treated  with  tlie  transferee  of  his  debtor's  property 
as  the  real  owner,  lie  is  estopped  from  contesting  the  sale.' 
Where  the  party  beneticiall_y  interested  in  lands  sold  under  a 
deed  of  trust  to  secure  a  debt,  the  sale  of  whicli  was  voidable, 
because  the  lands  were  put  up  in  lump,  subsequently  induces  a 
third  party  to  purchase  the  lands  from  the  vendee  at  the  tnistee's 
sale,  he  cannot  attack  the  validity  of  the  sale."  The  defendant, 
having  settled  on  and  inclosed  a  vacant  lot,  told  the  owner  that 
he  would  give  it  up  when  his  family  came.  Afterwards,  he 
wanted  to  fence  with  boards,  and  it  was  agreed  that  he  should  do 
so,  and  that  the  owner  should  pay  one-half  of  the  expense  ;  and 
at  other  times  he  recognized  the  owner's  title.  In  ejectment  by 
such  owner's  vendee,  the  defendant  was  estopped  from  disputing 
the  owner's  title.^  "Where  the  plaintiff  had  lived,  for  nearly 
twenty  years,  near  the  land,  and  had  made  no  claim  for  his  share 
of  it,  nor  given  any  notice  of  his  title,  though  aware  that  others 
were  making  valuable  improvements  upon  it  on  the  faith  .of  their 
titles,  he  is  estopped  from  asserting  title  in  himself,  as  against 
purchasers  ignorant  of  his  title  and  without  notice. ° 

§  072.  When  the  circumstances  are  such  as  to  give  rise  to  an 
equitable  estoppel,  it  will  be  binding  on  all  who  acquire  title  sub- 

'  Pollard  V.  Maddox,  28  Ala.  321.  50  Pa.  St.  417. 

Mvanaga    v.    R.    R.,    76   Mo.  207;  ^  Ross  v.  Pritcbard,  15  La.  Ann.  531. 

Provoetv.  R.  R.,  57  Mo.  25;   Baker  *  Taylor  v.  Elliott,  32  Mis.s.  172. 

V.  R.  R.  Co.,  57  Mo.  265;  Hubbard  v.  ^  Downer    v.    Ford,    16    Cal.   345; 

R.  R.  Co.,   63  Mo.  68;    R.  R.  Co.  v.  Flanders  v.  Train,  13  Wis.  596. 

Straus,  37  Md.  237;  R.  R.  v.  Jones,  «  Woods  v.  Wilson,  37  Pa.  St.  379 


1096  AFFr.cTiXG   Titlk  to  Land. 

seqneiitly,  with  notice  or  knowledge  from  the  party  estopped.' 
Althoui^h,  in  the  absence  of  notice,  the  legal  title  must  prevail 
where  the  title  to  land  is  iu  question, °  generally  speaking,  estop- 
pels of  this  description  are  limited  to  pai'ties  to  whom  the 
declaration  was  made,  or  the  assurance  given,  but  the  courts  liave 
also  enforced  them  against  third  persons.^  And  in  one  case*  tlie 
acquiescence  of  the  grantee  in  an  exclusive  right  of  way  in  its 
use  by  others,  and  his  calling  upon  them  to  contribute  to  keep  it 
in  repair,  were  held  to  create  an  estoppel  in  favor  of  a  third  per- 
son, who  might  be  presumed  to  have  been  influenced  by  the 
course  thus  pursued  in  l)ayng,  although  there  was  no  evidence 
that  it  had  been  brought  to  his  knowledge.  In  an  action  to 
recover  damages  for  obstructing  an  established  way  over  a  plant- 
iff's  land,  the  defendant  was  estopped  by  his  continuous  use  of 
the  way  from  repudiating  his  own  title  to  it  for  the  sake  of  turn- 
ing the  plaintiff  out  of  court  on  the  ground  that  his  reniedy  was 
trespass  or  ejectment.^  There  is  no  better  settled  principle  of 
law  than,  that  the  express,  or  even  tacit  acquiescence,  of  the 
owner  in  an  unauthorized  sale  of  chattels,  will  estop  him  from 
questioning  the  title  of  the  purchaser,"  and  it  has  even  been 
applied  where  a  failure  to  inform  a  purchaser  on  credit  of  the 
real  state  of  the  title,  and  thus  put  him  on  liis  guard  against  pajdng 
the  purchase  money.'  Whether  the  acts,  admissions  or  declara- 
tions constituting  the  estoppel  are  contemporaneous  with  or  prior 
to  the  sale,  makes  no  difference,  if  they  tended  to  deceive,  and  the 
buyer  was  actually  misled.* 

§  973.  Upon  a  sale  on  execution,  if  the  debtor  acts  in  select- 
ing appraisers,  and  in  giving  directions  to  the  marshal  concerning 
the    mode   of    sale,  and    these   facts  are  known  to  the  purchaser 

>  Sbawv.  Beebe,  35  Yt.  20.5;  Wooley  bard  v.  Stewart,  1  Hilt.  207;  Tbomp- 

V.  Edson,  35  Vt.  214.  son  v.  Sanborn,  11   N.  II.  201 ;   Ilub- 

«  Price  V.  Case.  10  Conn.  375.  bard  v.  Briggs,  31  N.  Y.  518;  Hogan 

3  Robinson  v.  Justice,  2  Pa.  St.  19;  v.  Brooklyn,  52  N.  Y.  282. 

Keeler  v.  Van  Tuyle,  6  Pa.  St.  250.  '  Thompson  v.  Sanborn,  11   N.  H. 

*  Lewis    V.   Carstuirs,   6     Wliarton,  201. 

193;  K.  R.  V.  Jones,  50  Pa.  St.  417.  « Lewis  v.  Carstairs,  6  Whart.  198; 

«  R.  R.  Co.  V.  Jones,  5U  Pa.  St.  417.  S.  C,  5W.  &  S.  205;  Quirk  v.  Thomas, 

*  Thompson  v.  Blauchard,  4   N.  Y.  6  ilich.  76;  Robinson  v.  Justice,  2  Pa. 
303;    Cox    V.   Buck,    3    Strobh.   367;  St.  19. 

Brew.ster  v.  Baker,  16  Barb   613;  llib- 


Equitable  Estoppel.  1097 

when  lie  buys  and  pays  for  tlie  property,  the  debtor  is  estopped 
from  avoiding  the  sale,  by  showing  that  the  marshal  had  not 
taken  the  necessary  steps  to  anthorize  him  to  sell.'  Even  where 
no  judgment  of  foreclosure  lias  been  entered,  yet  if  the  niort- 
sragee  has  admitted  in  writins^  the  whole  mortijaofe  debt  to  be 
due,  and  by  his  signature  and  acts  to  forward  and  expedite  the 
master's  or  sherili's  sale  of  the  mortgaged  premises,  waiving 
matters  of  form,  surrendering  possession  to  the  purchaser,  and 
moving  away,  or  standing  by  or  suffering  purchasers  for  large 
and  valuable  consideration,  to  improve  the  propertj^,  he  is  equit- 
ably estopped  from  asserting  his  ownership  for  wa;it  of  proper 
authority,  at  the  time  in  the  master  or  sheriff  to  sell.'  Where 
a  mortgagee  directed  and  sanctioned  a  sale  of  the  mortgaged  prop- 
erty, where  the  pro)ierty  was  sold  without  any  reference  to  the 
mortgage  or  the  equity  of  redemption,  and  received  the  pro- 
ceeds, and  did  not  object  to  or  quash  the  sale,  his  conduct  implies 
an  admission  of  title  in  the  mortgagor,  and  an  abandonmant  of 
any  title  in  himself  inconsistent  thereto,  and  bars  him  from  set- 
ting up  the  mortgage  in  a  court  of  equity,  against  the  purchaser.^ 
Where  land  is  incumbered  by  a  judgment,  and  the  owner  of  it 
allows  a  purchaser  to  acquire  a  title  to  it  at  a  sheriff's  sale 
on  execution  when  he  could  have  restrained  the  sale  by  an  equity 
superior  to  the  judgment,  he  cannot  then  claim  title  to  the  land 
as  against  the  purchaser,  where  such  claim,  if  sustained,  would 
also  result  in  a  loss  of  the  purchase  money  to  such  purchaser." 
So,  if  the  holder  of  a  judgment  which  is  a  lien  upon  certain  land, 
allows  it  to  be  believed  that  one  assuming  to  act  as  his  agent  in 
postponing  such  judgment  lien  to  a  trust  deed  about  to  be  made 
to  secure  a  loan  had   authority  to  do  so,  and   the   lender  of  the 


>  Hereford   v.    Bank,   53  Mo.    330;  Simpson,  3  Met.  (Ky.)  349;  Vanness 

City  V.  Willey,  35  Iowa,  333;  Craw-  v.  Vanness,  1  N.   J.  E.  248;    ReicI  v. 

ford  V.  Ginn,  35  Iowa,  543;  Erwin  v.  Heasley,  3  B.  Mon.  354;  Banli  v.  Den- 

Lowry.  7  How.  173;  Reed  v.  Leups,  38  nis,  37  111.  381;  Hoffmire  v.  Holcomb, 

Wis.  353.  17  Kas.    378;  Turner  v.  Watidns,  31 

^  Cromwell  v.  Bank,  3  Wall.  Jr.  C.  Ark.  429;  Morris  v.  Shannon,  12  Bush, 

C.  569.  89;.McBride  v.    Lcwisohn,    17  Hun, 

2  Beall  V.  Barclay,  10  B.  Mon.  361.  534;  Holmes  v.    Steele,  28  N.    J.  E. 

«Ricev.  Bunce,  49  Mo.  331;   Stud-  173;  Slagel  v.  Murdock,  65   Mo.  523; 

daid  V.  Lemond,   48  Ga.  100;  Bryan  Frost  v.  Quackenbush,  18  Abb.  3. 
V.    Ramirez,   8    Cal.    461 ;    Moore  v. 


1098  Affectin^g   Title  to  Land. 

money  secured  by  the  deed,  and  a  surety  on  the  note  given,  act, 
in  taking  the  deed  and  signing  the  note,  in  that  belief,  he  is 
bound  by  tlie  act  of  the  agent,  altliougli  no  consideration  ac- 
crued to  him  from  the  transaction,  and  a  purchaser  of  the  judg- 
ment, or  of  a  title  under  the  judgment,  with  notice  of  the  facts, 
is  similarly  bound.' 

§  974.  In  cases  where  the  doctrine  of  equitable  estoppel  is 
invoked,  it  is  administered  upon  the  ground  of  fraud  or  gross 
negligence,  which  implies  fraud.  There  must  be  positive  fraud 
or  concealment,  or  negligence  so  gross  as  to  amount  to  construc- 
tive fraud.  It  would  be  a  fraud  in  a  party  to  assert  what  his 
previous  conduct  had  denied,  when  on  the  faith  of  that  denial 
others  have  acted."  AVhat  shall  be  sufficient  concealment  or  false 
representation  to  create  the  estoppel,  is  a  matter  depending  in  a 
great  measure  on  the  circumstances  of  the  case.  While  it  has 
been  well  established  in  estoppels  by  record  and  by  matter  of 
writing,  or  by  deed,  what  is  necessary  to  create  either,  there  have 
been  no  particular  rules  established  or  adopted  in  regard  to  the 
nature  and  amount  of  proof  or  circumstances  necessary  to  create 
an  equitable  estoppel.  Every  case  in  which  this  branch  of  the  law 
of  estoppel  is  applicable  must  therefore  depend  upon  the  peculiar 
circumstances  connected  with  it ;  but  some  degree  of  moral  tur- 
pitude is  indispensably  necessary  to  give  mere  silonce  or  acqui- 
escence the  force  of  a  peremptory  estoppel.*  Good  faith  and 
diligence  must  concur  on  one  side,  with  the  want  of  them  on  the 
other,  and  no  estoppel  can  arise  in  the  absence  of  actual  fraud, 
unless  the  purchaser  was  destitute,  not  only  of  actual  knowledge 
of  the  true  state  of  the  title,  but  of  a  means  of  acquiring  knowl- 
edge by  a  recourse  to  the  record,'  or  in  any  other  manner  equally 

'  Booth  v.  Wiley,  102  111.  84.  v.  Roberts,   109  Moss.  53;  Pai-ker  v. 

«  Brant  v.   Coal  Co.,  93    U.  S.  386;  Barker,  2  Met.  423:  Morris   v.  Moore, 

Hill  V.  F.pley.    31   Pa.    St.   335;  Ilea-  11  Humph.  433. 

sliaw  V.  Bisscll,  18  Wall.  271;    Boggs  » Titus  v.    Morse,  40  Me.  348;  Col- 

V.  Mining  Co.,  14   Cal.  368;  Davis  v.  bert   v.    Daniel,  32   Ala.  314;  Hill  v. 

Davis,  2()  Cal.  23;  Commoawealth  v.  Epley,   31   Pa.    St.   331:  Clabaugh  v. 

Motz.    10   Pa.    St.  531;    Copeland   v.  Byerly,  7  Gill,  354;  Robinson   v.  Jus- 

Copeland,  28   :\Ie.  539;  Deleplainc  v.  tice,  2  Pa.  St.  9. 

Hitchcock,  G  Hill,  GIO;  Davis  V.  Mar-  *  BigeloAv  v.   Topliff.   25    Vt.  273; 

rli-mt.    1  Curt.  C.  C.  136;  Zuchtmanu  Carter  v.  Cliampion,  8  Conn.  594. 


Equitable  Estoppel.  1099 

obvious  or  certain  ;'  for  under  such  circumstances  both  parties 
will  be  regarded  as  equally  negligent,  and  it  would  be  wrong  to 
relieve  one  at  the  cost  of  enforcing  a  forfeiture  against  the  other." 

§  975.  In  order  to  enforce  an  equitable  estoppel  with  respect 
to  the  title  of  property,  such  ;;s  will  prevent  a  party  from  assert- 
ing his  legal  rights,  and  the  effect  of  which  will  be  to  transfer  the 
enjoyment  of  the  property  to  another,  the  intention  to  deceive 
and  mislead,  or  negligence  so  gross  as  to  be  culpable,  should  be 
clearly  established.  '■  The  principle  that  one  should  l)e  estopped 
from  asserting  a  right  to  property,  upon  which  ho  has,  by  his  con- 
duct, misled  another,  who  supposed  himself  to  be  the  owner,  to 
make  expenditures,  is  often  applied  where  one  owning  an  estate, 
stands  by  and  sees  another  erect  improvements  on  it  in  the  belief 
that  he  has  the  title  or  an  interest  in  it,  and  does  not  interfere  to 
prevent  the  work  or  inform  the  party  of  his  own  title.  There  is 
in  such  conduct  a  manifest  intention  to  deceive,  or  such  gross 
negligence  as  to  amount  to  constructive  fraud.  The  owner,  tliere- 
fore,  in  such  a  case,  will  not  be  permitted  afterwards  to  assert  his 
title  and  recover  the  property,  at  least  without  making  compensa- 
tion for  the  improvements.  But  this  salutary  principle  cannot  be 
invoked  by  one  who,  at  the  time  the  impi'ovements  were  made, 
was  acquainted  with  the  true  character  of  his  own  title,  or  with 
the  fact  that  he  had  none.'" 

§  976.  In  order  to  create  an  estoppel  by  which  an  owner  is 
prevented  from  asserting  title  to,  and  is  deprived  of  his  property 
by  the  act  of  a  third  person  without  his  assent,  the  owner  must 
have  clothed  the  person  assuming  to  dispose  of  the  property,  with 
the  apparent  title  to,  or  authority  to  dispose  of  it.     The  person 

'Hill  V.    Epley,    31   Pa.    St.    331;  Byerly,    7    Gill,    354;    Alexander  v. 

Taylor  V.Ely,  25  Conn.  250;  Crest  v.  Kerr,  2  Rawle,   83;  Hepburn  v.  Mc- 

Jack,    3  Watts,  238;  Commonwealth  Dowel,  ITS.  &R.  383;  Crest  v.  Jack, 

V.    Moltz,  10  Pa.  St.    527;  Fi.sher  v.  3  Watts,  238;  Menges  v.  Oyster,  4  W. 

Mossman,  11    Ohio   St.    42;  Odlin  v.  &  S.  20;  Baldwin   v.    Richman,  9  :^r. 

Gove,  41  N.  H.  465.  J.    E.    394;    Moncure   v.    Hanson,  15 

=  East  India  Co.  V.  Vincent,  2  Atk.  Pa.  St.    385;  Ins.    Co.    v.  Martin,    13 

83;   Gray   v.    Bartlett,    20   Pick.    86;  Minn.  59. 

Casey  V.  Inloe,  1  Gill,  430;  Tongue  v.  »  Steele  v.  Smelting   Co.,  106  U.  S. 

Nutwell,    17     Md.     212;    Knoupf    v.  456:  Brant  v.  Coal   Co.,  93  U.  S.  326; 

Thompson,  16  Pa.  St.  357;  Carpenter  Henshaw  v.  Bissell,  18  Wall.  255. 
V.  Slillwell,  11  K  Y.  61;  Clabaughv. 


1100  Affecting  Tfixeto  Laxd. 

allcgini-;  tlie  estoppel  mnsL  have  nctetl  and  parted  with  value,  upon 
the  faith  of  such  apparent  ownership  or  authority,  so  that  he  will 
be  the  loser,  if  the  ai)pearances  to  which  he  trusted  ai-e  not  real.' 
The  general  rule  is.  that  the  estoppel  thus  created,  operates  to  put 
the  party  entitled  to  the  benefit  of  the  estoppel  in  the  same  posi- 
tion  as  if  the  thing  represented  was  true,  or  that  the  action  taken 
upon  the  faith  of  the  conduct  of  the  party  estopped,  is  such  that 
no  tribunal  will  permit  him  to  prove  the  contrary,"  One  who 
assists  at  a  sale  and  recommends  the  title  as  being  good  in  the 
vendor,  is  estopped  to  set  up  against  the  purchaser  a  secret  equita- 
ble title  in  himself/  A  sale  of  a  tract  of  land  bj  one  of  several 
joint  owners  will  bind  the  others,  or  either  of  them,  if  it  is  shown 
that  they,  or  either  of  them,  were  present  at  the  sale  and  made  no 
objection  thereto,  but  on  the  contrary  urged  and  advised  the  sale.* 
So.  where  the  holder  of  the  legal  title  to  lands  acknowledges  in  a 
letter  of  attorney  duly  executed  and  acknowledged,  which  is 
recorded,  in  which  he  authorizes  their  sale  and  that  the  attorney 
is  a  joint  and  equal  owner  with  him,  and  a  stranger  buj^s  it  on  an 
execution  sale  against  the  attorney,  without  notice  that  the 
attorney  was  still  indebted  for  the  price  of  the  land  (his  share), 
the  purchaser  acquires  a  good  title  as  against  the  owner ;  neither 
the  widow  nor  the  heirs  can  take  advantage  of  any  secret  equities 
against  one  who  purchased  on  the  faith  of  such  written  de-.-lara- 
tion.' 

§  977.  A  man  cannot  deny  the  validity  of  a  sale  made  by  a 

1  "Weaver  V.  Barden,  49  N.  Y.  286;  Appeal,     90    Pa.    St.    40;    Rabun    v. 

McGoldiick  v.  Willetts,  52  K  Y.  612;  Rabun,  61   Ga.  647;  Green's   Appeal, 

Bank  v.  R.  R.,  44  N.Y.  136;  Saltus  v.  97  Pa.  St.  342;  Schenck  v.  O'Neil,  23 

Everett,   20   Wend.    207;  Wooster  v.  Ilun,  209. 

Sherwood,  25  N.  Y.  278;  Pcabody  v.  »  Winchell   v.   Edwards,  57  111.  41; 

Brower,    13   N.    Y.    121;     Walsh    v.  Dean  v.  Martin,  24  La.  An.  103;   Tro- 

Bank,  94111.  191;  Dahlraan,  V.   Fors-  bridge     v.    Mathews,    28    Wis.    656; 

ter,  55   AVis.    382;  Hart   v.   Giles,    67'  Leeper  v.  Hersman,  58  111.  218;  David- 

Mo.  175.  son    V.    Silliman.    24    La.    An.    225; 

^Grissler  v.   Powers,  81   N.  Y,  57;  Henson  v.  Westcott,  82111.  224;  Miller 

S.  C,  37  Am.  R.  475;  Renkin  v.  Hill,  v.  Springer,  70 Pa.  St.  26'.t. 

49  Iowa,  270;  Bemis  v.  Becker,  1  Kas.  *  Crownover  v.  Randle,  21   La.  An. 

226;    Welsch  v.    Bank,    94    111.    191;  469. 

Kirkpatrick  v.  Brown,    59   Ga.    450;  ^  Richardson  v.  Hyams,  1  La.  An. 

Mayer  v.  Erhardt,  88  111.   452:  Hend-  286. 
ricks  v.  Kelly,    64  Ga.   388;  AYylies 


Equitable  Estoppel.  1101 

person  whom  he  has  enabled  to  hold  himself  out  to  the  world  as 
the  owner,  or  duly  authorized  to  sell.'  In  order  to  produce  this 
result,  there  must  be  fraud  or  neglect  on  the  part  of  the  owner,  as 
well  as  good  faith  on  the  part  of  the  purchaser.^  When  A.,  with 
a  view  to  hinder  and  delay  his  own  creditors,  falsely  and  fraud- 
ulently holds  out  to  the  public  and  pretends  that  certain  chattels 
bought  and  paid  for  by  him,  and  then  in  his  possession,  belong  to 
B.,  who  has  the  lease  of  the  store  where  the  articles  are  sold,  and 
whose  name  is  upon  the  awning,  he  will  be  precluded  from  claim- 
ing the  property  as  against  the  creditors  of  B.,  who  seize  the 
property  upon  their  executions."  Where  the  owner  of  goods 
stands  by  and  allows  another  to  treat  them  as  his  own,  by  which 
means  a  third  person  is  induced  to  purchase  them,  the  former 
cannot  recover  theu^  from  the  purchaser;  and  if  one  by  his  con- 
duct causes  another  to  believe  in  the  existence  of  a  state  of  facts, 
or  by  his  silence  admits  another  to  be  the  owner  of  property, 
when  such  ownership  is  asserted,  so  that  a  third  person,  in  acting 
upon  it,  assumes  a  responsibility  or  parts  with  the  property,  he 
cannot  afterwards  aver  his  own  title  to  the  injury  of  such  pei'son.^ 
If,  after  an  alleged  purchase  of  goods,  the  vendees  cause  an  exe- 
cution to  be  levied  upon  them  as  the  property  of  the  vendor,  this 
is  a  solemn  admission  on  their  part  that  the  goods  were,  at  the 
time  of  the  levy,  the  property-  of  the  vendor,  and  they  are  estop- 

'  Pickering  v.    Busk,  15  East,  38;  105;    Cox  v.    Buck,    3    Strobh.   366; 

Davis  V.  Bradly,  24  Vt.  35;   Dyer  v.  Combes  v.  Chandler,  33  Ohio  St.  178; 

Pearson,  3  B.  «&  C.  38;  Reed  v.  Van-  Wood's  Appeal,  91  Pa.  St.  379;  S.  C. 

cleve,  27  N.  .J.  L.  352;  Caimichael  v.  37  Am.  R.  694;  Tucker  v.  Bank,  58  N. 

Buck,  1  Rich.    Eq.    332;  Wiuton  v.  H.  83:  S.  C,  42  Am.  R.  580. 

Hart,  39   Conn.    16;    Dodd   v.    R.  R.  ^  ]Sixon  v.   Brown     57    K    H.  34; 

Co.,  48  Ga.  102;  Moore   v.    Bank.  55  Barnard  v.  Campbell,  55    N.  Y.  546; 

X.  Y.  41;  McStea   v.  Mathews,  50  K  Coffin  v.  Gephart,  18  Iowa,  256;  Towle 

Y.  166;  Horn  V.  Cole,  51   N.    H.  287;  v.  Leavitt,  23  N.  H.  373;  Faucett  v. 

Mason  v.    Williams,  8  Jones  L.  478;  Osborn,  32  111.  41;  Dyer  v.    Pearson, 

Keyser    v.    Harbeck,    3  Duer.    373;  3  B.  &  C.  38. 

Quirky.  Thomas,  5  Mich.  76;  Cald-  ^  pjckard  v.   Sears,  6  A.  &E.  469; 

wellv.  Bartlett,  3  Duer,   341;  Lowber  McLean  v.    Dow,  42   Wis.  610;  Bird 

V.    McCoy,  12  La.  An.  795;  Gregg  v.  v.  Benton,  2  Dev.  L.  179:  Governor  v. 

Wells.  10  A.  &  E.  90;  Saltus  v.  Ever-  Freeman,    4  Dev.   L.  472;  Rigney  v. 

ctt,  20  Wend.  268;  Jlowrey  v.  Walsh,  Smith,  34  Barb.  383. 

8    Cow.    238;    Root    v.    French,    13  *  Hatch    v.    Kimb:ill,   16   Me.    146; 

Wend.    570;  McNeil   v.    Bank,  46  N.  Hibbard  v.  Stewart,  1  Hilt.  207. 
Y.  325;  Jarvis   v.   Rogers,    13  Mass. 


1102  Afi-ecting  Title  to  Land. 

ped  from  claiming  the  goods  in  any  other  way  than  by  virtue  of 
the  said  levy,  even  where  it  was  proven  that  they  did  not  intend 
to  abandon  their  alleged  purchase,  and  acted  under  the  advice  of 
counsel  that  their  title  would  not  be  affected  thereby.'  The 
owner  of  goods,  who  stands  by  and  voluntarily  allows  another  to 
treat  them  as  his  own,  whereby  a  third  person  is  induced  to  buy 
them  bona  fide,  cannot  recover  them  from  the  vendee. 

§  978.  Where  the  owner  holds  out  another,  or  allows  him  to 
appear  as  the  owner  of,  or  as  having  full  power  of  disposition 
over,  the  property,  and  innocent  third  parties  are  led  into  dealing 
with  such  apparent  owner,  they  will  be  protected.  Tlieir  rights 
in  such  cases  do  not  depend  upon  the  actual  title  or  authority  of 
the  party  with  whom  they  deal  directly,  but  are  derived  from  the 
act  of  the  real  owner,  which  precludes  him  from  disputing,  as 
against  them,  the  existence  of  the  title  or  power  which,  through 
negligence  or  mistaken  conlidence,  he  caused  or  allowed  to  appear 
to  be  vested  in  the  party  making  the  sale  or  conveyance.  Posses- 
sion of  personal  property  \^  prima  facie  evidence  of  title  :  it  would 
furnish  fraudulent  parties  with  the  means  of  defrauding  honest 
purchasers,  to  intrust  them  with  the  apparent  ownership  of  prop- 
erty, while  the  real  title  is  allowed  to  remain  in  a  third  party, 
who  can  reclaim  it  at  pleasure.  If  a  vendor,  by  collusion  with 
his  vendee,  enters  into  a  contract  for  the  purpose  of  enabling  the 
latter  to  obtain  a  false  credit,  or  to  impose  on  innocent  parties,  by 
means  of  property  placed  in  his  possession,  the  vendor,  being  a 
party  to  a  fraud,  will  be  estopped  to  set  up  any  title  to  the  prop- 
erty, and  creditors,  as  well  as  innocent  purchasers  of  the  vendee, 
may  well  claim  to  hold  it,  on  the  ground  that  it  was  placed  in  his 
possession  for  a  fraudulent  purpose."     Thus,  where  the  vendor  of 

'  Smith  V.  Taylor,  14   La.  An.  668;  456;   Anderson   v.  Arraistead,  69    111. 

Drew  V.  Kimbuii,  48  N.  H.  282;  Field  452;   McDermott  v.  Baruum,  19  Mo. 

V.  Laugsdorf,  48  Mo.  32.  204;   Sanders  v.    Keber,  28  Ohio  St. 

*  Pickering  v.    Busk,  15  East,   38;  641;  Johnson  v.  Lyonnais  Co.,  L.  II. 

Gregg  V.    Wells,  10  Adol.  &  El.  90;  3  C.  P.  82;  Wood's  Appeal,  92  Pa.  St. 

Saltus    V.    Everett,    20     Wend.    267;  379;  S.  C,  37   Am.  R.   694;  Combes 

Mowrey  v.  Walsh,  8  Cow.  238;  Root  v.  Chandler,  33  Ohio  St.  178;  Tu(;ker 

V.  French,   13  Wend.  570;  Moore  v.  v.  Bank,  58  N.  H.  83;  S.  C,  42  Am. 

Bank,  55  N.  Y.  41;  Dyer  v.  Pearson,  R.  580;  Dyer  v.  Pearson,  3  B.  &  C.  38; 

3  B.  &  C.  43;  Nixon  v.  Brown,  57  N.  Bauldug  Co.,  in  re,  L.  R.  3  Ch.  App. 

H.  4;  Bai  uard  v.  Campbell,  55  N.  Y.  154. 


Equitable  Estoppel.  1103 

property  gives  to  the  purchaser's  ageut,  through  whom  the  pur- 
chase was  made,  a  receipt  in  fnll  for  the  purcliase  money,  and  the 
purchaser,  in  good  faith,  relying  on  the  truth  and  validity  of  the 
receipt,  pays  the  amount  to  the  agent,  the  vendor,  is  estojjped,  as 
between  him  and  the  purchaser,  from  denying  the  truth  of  the 
receipt,  and  can  not  recover  the  money  from  the  purchaser,  or 
reclaim  the  property/  Thus  scrip  certificates  are  issued  to  A., 
and  by  him  deposited  with  his  broker  B.,  for  the  purpose  of  pay- 
ing the  assessments  remaining  due,  and  dealing  with  them  as  they 
should  direct.  B.,  in  fraud  of  the  rights  of  A.,  aud  without  his 
authority,  deposited  the  scrip  with  C,  as  security  for  amount  due 
from  B.  to  C.  C.  was  not  aware  of  the  fraud.  Such  certificates 
having  become  by  custom  and  usage,  negotiable  instruments  trans- 
ferable by  mere  delivery,  C.  was  entitled  to  them  as  against  A., 
on  the  ground  of  their  negotiability  and  by  reason  of  his  deposit- 
ing them  with  B.,  and  allowing  him  to  appear  as  the  owner  and 
as  having  full  disposition  over  them.*  So,  where  an  owner  of  state 
warrants  loaned  them  to  the  auditor  to  be  exhibited  in  evidence, 
and  the  auditor  sold  them  to  a  purchaser  for  value  without  notice ; 
the  owner  by  delivering  the  warrants  to  the  auditor  had  enabled 
the  latter  to  make  the  sale  of  them,  and  could  not  impeach  the 
purchaser's  title.' 

§  979.  One  who  willfully  or  negligently  enables  another  to 
hold  himself  out  to  the  world  as  the  owner,  by  furnishing  him 
with  the  documentary  evidence  of  title,  or  suffering  the  goods  to 
be  entered  in  his  name  on  the  books  of  the  warehouse  where  they 
are  deposited,  will  be  estopped  as  against  a  purchaser  who  gives 
value  in  the  belief  that  the  apparent  ownership  is  real.*     If  a 

'  Miller  v.    Sullivan,    3G   Ohio   St.  *  Dyer  v.  Pearson,   3  B.    &  C.  38; 

639.  Saltus  v.  Everett,  20  Wend.  267;  Pick- 

"  Rumball  v.   Bank,  L.  R.   2  Q.  B.  eiing  v.  Busk,  15  East,  38;  Davies  v. 

D.  194;  Goodwin  v.   Roberts,  1  xipp.  Bradley,  24  Vt.  55;   Copelaud  v.  Bos- 

Cas.  476;    S.  C,  L.  R.  10  Excbq.  377.  quet,   4   Wash.    C.    C.    588;   McCau- 

3  Mahau  v.  Du  Buclet,  27  La.  Ann.  ley  v.  Brovi'n,  2  Daly,  426;   Porter  v. 

45;   Ruiz  v.  Norton,  4  Cal.  355;  Coles  Parks,  49  X.   Y.  564;  Dixon   v.   Rol- 

V.  Anderson,  8  Humph.  489;   Kessler  ards,  17  Mo.  580;   Keyser  v.  Harback, 

V.   Zimmercbite,    1   Tex.  50;   Wood's  3  Duer,  373;    Carmic'hael  v.  Beck,  10 

Appeal,  92  Pa.  St.  379;  S.  C,  37  Am.  Richardson,  333;  Whitman  v. Boiling, 

R.  694;  Combes  v.  Chandler,  33  Ohio  47  Ga.  135;  Coombes  v.  Chandler,  33 

St.  178.  Ohio  St.  178;  Studdard  v.  Lemond,  48 


1104  Affecting  Title  to  Land. 

party  lias  by  deed  admitted  the  title  of  the  plaintiff  to  the  chattels 
in  respect  of  which  the  action  is  brought,  he  will  be  estop[)ed 
from  disputing  it  at  the  trial.'  If  he  has  accredited  the  title  of 
some  third  person  to  the  goods,  and  so  induced  the  plaintiff  to 
buy  frum  the  latter,  he  will  be  estopped  from  setting  up  any  title 
in  himself.*  If  the  owner  of  goods  parts  with  the  possession  of 
them,  and  knowingly  suffers  his  bailee  to  deal  with  the  goods  as 
owner,  and  culpably  and  negligently  stands  by  and  allows  a  third 
person  to  acquire  an  interest  in  the  goods  on  the  faith  and  under- 
standing of  a  fact  which  he  can  contradict,  he  will  be  afterwards 
estopped  from  disputing  the  fact  in  an  action  against  the  person 
whom  he  has  himself  assisted  in  deceiving.  Tlius  the  plaintiff, 
the  owner  of  the  fixtures  of  a  public  house,  demised  them  to  A., 
who  thereupon  became  tenant  of  the  house  to  B.,  under  an  agree- 
ment which  gave  his  landlord  a  lien  on  the  fixtures,  the  plaintiff' 
being  present  at  the  execution  of  such  agreement.  A.  afterwards 
sold  the  good-will  and  fittings,  without  the  plaintiff's  Icnowledge 
or  assent,  to  the  defendant,  who,  being  told  by  B.  that  A.  was  his 
tenant,  bought  them  honajide,  in  ignorance  of  the  plaintiff's  title, 
and  was  accepted  by  B.  as  a  tenant  in  the  place  of  A.  JleUl,  that 
he  was  estopped  in  an  action  to  recover  the  fixtures.' 

§  980.  So  where  one  of  several  administrators  was  present  at 
a  levy  upon  the  property  of  his  intestate,  and  furnished  to  the 
ofificer  a  list  of  tlie  slaves,  and  was  present  at  the  sale,  and  made 
statements  to  the  bidders;  although  it  did  not  appear  that 
he  acted  fraudulently,  the  administrators  were  esto])ped  from 
proceeding  against  the  officer  as  a  tresspasser.*  So  where  A.  had 
a  large  quantity  of  flour  stored  in  the  warehouse  of  B.  and  sold 
a  portion  of  it  to  C,  and  gave  an  order  for  the  flour  sold   on    B  , 

Ga.  100;    Wood's  Appeal,  92  Pn.  St.  =  Waller  v.   Drakeloid,  l^E.  &  B 

379;  S.  C.  37  Am.  R.  694;  Jame.son  v.  753. 

Jam(!Son,  (ifi  III.  259;  Tucker  v.  Bank,  =*  Gregg  v.  Weils.  10  Ad.  &  Ell.  99; 

58  N.   H.  83;   S.  C,  42  Am.  II.    580;  Francis    v.     Welch.    11     Ired.     215: 

Tucker  v.   Coinvell,  67  111.  552;   Mar-  Downer   v.    Flint,    2    P.    Wms.    527; 

quat  V.  Bradford.  43  Cal.  52G;  Basher  Vilas   v.   Madison,  25  Wis.  310;  Geb- 

V.   Wolf.   59  111.  470;   Niven  v.    Bel-  hard  v.   Bates,  2  Q.  B.  476;   llolroyd 

knap,  2  Johns.    573;  New   Iluveu  v.  v.    Marshall,    2   De  G.  F.   &  J.    596; 

Pairbaven,  &c.  Co.,  38  Conn.  421.  Briusmade  v.  Hurst,  3  Duer,  206. 

'  Wiles   V.    Woodward,    5    Exchq.  «  Ponder   v.    Moselej',   2   Fla.   207; 

557.  Ackley  v.  Neufville,  25  Cal.  551. 


Equitable  Estoppel.  1105 

who  accepted  the  same,  and  gave  C.  in  exchange  a  receipt  for  the 
same,  and  transferred  it  on  his  warehouse  books  to  the  account  of 
C,  but  did  not  separate  any  specific  portion  from  the  flour  of  A. 
as  the  property  of  B.,  and  the  whole  was  subsequently  seized  in 
an  action  against  A. :  Held,  that  the  sheriff  was  not  liable  to  C. 
in  the  absence  of  segregation  of  the  flour ;  but  that  B.  was  estop- 
ped by  his  receipt,  from  denying  his  liability.'  Warehousemen, 
who  give  their  receipts  for  goods  on  storage,  are  estopped  from 
setting  up  a  want  of  segregation  of  the  goods  receipted  for,  from 
other  goods  in  an  action  against  them,  by  the  holder  of  the 
recei))t,  for  a  conversion  of  the  goods  by  a  seizure  in  an  action 
against  a  vendor  of  the  plaintiff.^ 

§  981.  So  where  A.  sold  by  contract  to  B.  100  casks  of  tallow 
then  lying  at  a  wharf,  and  on  the  same  day  gave  him  a  written 
order  to  the  defendants,  the  wharflngers,  "  to  weigh,  deliver, 
transfer  and  re-house  the  same."  The  next  day  B.  who  had 
previously  entered  into  a  contract  with  the  plaintiffs  for  the  sale 
of  300  casks  of  tallow,  in  part  fulflllment  of  that  contract,  obtained 
from  the  wharfingers  and  sent  to  the  plaintiffs  the  following 
acknowledgment :  "  Messrs.  0.  &  Co  :  We  have  this  daj'  trans- 
ferred to  your  account  (by  virtue  of  an  order  from  B.)  100  casks 
tallow,  &c.,  with  charges  from  10th  October."  Upon  the  receipt 
of  this,  the  plaintiffs  paid  B.  the  full  amount  of  the  tallow. 
Shortly  afterwards,  the  defendants  delivered  twenty-one  of  the 
casks  to  the  order  of  the  plaintiffs.  On  the  11th  of  October,  B. 
stopped  payment,  and  on  the  11th,  A.  sent  notice  to  the  defend- 
ants not  to  deliver  the  remainder  of  the  tallow  to  B.  or  his  order; 
and  though  the  tallow  had  not  been  weighed,  held,  the  defend- 
ants were  estopped  by  their  acknowledgment,  and  could  not  set 
up  in  defense  a  right  in  A.  to  stop  intransitu.^  The  defendant, 
a  wharfinger,  having. acknowledged  certain  titnber  on  his  wharf 
to  be  the  property  of  the  plaintiff' ;  held  that  he  could  not 
dispute  the  plaintiff's  title."  A  manufacturer  deposited  goods 
with  a  wharfinger  at  Stockton,  for   the  purpose  of  being  shipped 

•  Adams  v.  Gorliam,  6  Cal.  C8.  6G0. 

2  Goodwin  v.  Scr.unell,  6  Cal.  541.  «  Goslinir  v.    Biinie,   7   Bing,  339; 

^  Ilawes  V.  Watson,  4  Dowl.  &  Ry.  Bassett  v.   Holbrook,    24   Coun.  452; 

22;  Woodley  v.  Coventry,  3  H.  &  C.  Gillelt  v.  Hill,  3  C.  &  M.  530;  Stonard 

164;  Knights   v.   ^Viffen,  L.  R.  Q.  B.  v.  Duncan,  3  Camp.  344. 
Vol.  I.— 70 


JJ06 


Affecting  Title  to  Land. 


from  the  defendants'  wliarf  in  London,  receiving  from  him 
receipts  describing  them.  The  phiintiflf  sent  the  receipts  and 
Jelivery  orders  to  the  defendants,  and  demanded  the  goods.  The 
defendants  stated  that  the  goods  had  not  arrived,  but  promised 
that  when  they  did  arrive  they  should  be  forwarded  to  the  pUiint- 
iffs ;  the  defendants,  having  thus  assented  to  the  plaiutifi's 
title,  could  not  afterwards  dispute  it. 


§  982.  The  expenditure  of  money  or  labor  by  one  man  on  the 
land  of  another,  under  a  license  given  by  the  owner,  will  estop 
the  owner  from  revoking  the  license  and  wresting  the  former 
from  his  possession  of  the  land.*  Where  a  licensee  has  expended 
money  on  the  faith  of  the  license,  and  put  himself  in  a  position 
that  he  would  be  seriously  damaged  b}"  allowing  it  to  be  revoked, 
the  estoppel  is  applied  in  the  same  manner  as  it  is  to  tho'se  cases 
of   acquiescence    and    silent    consent.*      A    parol   license,    when 


'  Simmons  v.  Morehouse,  88  Ind. 
391;  Lane  v.  Miller,  27  Ind.  534;  Ogle 
V.  Dill,  fj.j  Ind.  130;  Lee  v.  McLeod, 
18  Nev.  280;  Hodgson  v.  Jeffries,  52 
Ind.  334;  Dyer  v.  Caunall,  4  Pa.  St. 
353;  Bridge  Co.  v.  Bragg,  11  N.  H. 
702;  Rikerv.  Kelly,  1  Me.  117:  Bab- 
<;ock  V.  Utter,  1  Keyes,  115;  Van 
Oiileu  V.  Van  Ohlcu,  56  111.  528; 
Thompson  v.  McElarney,  81  Pa.  St. 
174;  Clute  v.  Carr,  20  Wis.  53;  Ilazle- 
ton  V.  Putnam,  3  Wis.  107;  Swartz  v. 
Swartz,  4  Pa.  St.  353;  Ilulins  v.  Ship- 
ham,  5  B.  &  C.  221;  French  v.  Owen, 
2  Wis.  250;  Fryer  v.  ^V^arncr,  29  Wis. 
511:  Ebmer  v.  Stichler,  19  Pa.  St.  19; 
Ilutr  V.  McCauley,  57  Pa.  St.  206; 
Winter  v.  Brockwell,  8  East,  308; 
Cook  V.  Stearns.  11  Mass.  533;  Hous- 
ton V.  Laffee,  46  N.  H.  505;  Batchel- 
der  V.  Hibburd,  58  N.  H.  259;  Taylor 
V.  Waters,  7  Taunt.  374;  Ward  v. 
Lake,  1  Sawyer,  3;  Liggins  v.  Inge,  7 
Ring.  682;  Rerick  v.  Kern,  14  S.  &  R. 
267;  Lane  v.  Miller,  27  Ind.  534; 
Water  Power  Co.  v.  Veghte,  21  N.  J. 
Eq.  463;  S.  C,  19  N.  J.  Eq.  142;  Hall 
V.  Chaffee,  13  Vt.  150;  Fool  v.  Co.,  23 


Conn.  302;  Blanchard  v.  Baker,  8  Me. 
253;  Bridge  v.  Bragg,  11  N.  H.  102. 
Munford  v.  Whitney,  15  Wend.  380; 
Addison  v.  Hack,  2  Gill,  221;  Van 
Ohlen  V.  Van  Ohleu,  56  111.  528; 
Sheffield  v.  Collier,  3  Ga.  82;  Stiles  v. 
Cowper,  3  Atk.  692 ;  Ea.st,  &c.  Co.  v. 
Vincent,  2  Atk.  83;  Hardcastle  v. 
Shafts,  1  Anst.  184;  Dann  v.  Spur- 
rier, 7  Vcs.  235;  Powell  v.  Thomas,  6 
Hare,  300;  Canal  Co.  v.  Sling,  16 
Beav.  634;  Devonshire  v.  Eglin,  14 
Beav.  530;  Mold  v.  AVheatcroft,  27 
Beav.  510;  Canal  Co.  v.  Harcourt,  2 
De  G.  &  J.  608;  Williams  v.  Earl, 
Cr.  &  Ph.  97;  Monroe  v.  Perkins,  9 
Pick.  298;  Lawrence  v.  Dole,  11  Yt. 
549;  Hoffman  v.  Lee,  3  Watts,  352; 
Russell  V.  Pfubbard,  50  III.  335. 

^  Cook  V.  Pridgcn,  45  Ga.  331 ;  Win- 
ham  v.  McGuire,  51  Ga.  578;  Wj'nn 
V.  Garland,  19  Ark.  23;  Fuhr  v.  Dean, 
26  Mo.  716;  Lefevre  v.  Lefevre,  4  S. 
&  R.  241;  McKellip  v.  Mcllhenny,  4 
Watts,  317;  Lee  v.  McLeod,  12  Nev. 
280;  Gooch  v.  Sullivan,  13  Nev.  78; 
Rhodes  v.  Otis,  33  Ala.  578;  Grant  v, 
Davenport,  18  Iowa,  178. 


Equitable  Estoppel.  1107 

executed,  may  become  an  easemeDt  on  tlie  land,  and  where  acts 
have  been  done  in  reliance  npon  a  license,  tlio  licensor  will  be 
estopped  from  revoking  it  to  the  injury  of  the  licensee.'  This 
rule,  that  a  license  to  do  something  on  the  licensor's  land,  fol- 
lowed b}'  expenditure  on  the  faith  of  i't,  is  irrevocable,  rests  upon 
the  principle  of  estoppel,  because  the  parties  cannot  be  placed  in 
statu  quo.  Equity  treats  a  license  thus  executed  as  a  contract 
giving  an  absolute  right.*  A  license  cannot  be  revoked  or  with- 
drawn, as  long  as  it  is  essential  to  the  possession  or  enjoyment  of 
a  vested  right  or  interest,  which  has  been  created  by  the  licensor, 
placed,  with  his  assent,  where  the  continuance  of  the  license  is 
essential  to  its  enjoyment.  This  is  a  branch  of  the  rule  that  no 
one  can  withdraw  a  promise  or  declaration,  made  with  a  view  of 
inducing  others  to  act,  after  they  have  acted  upon  it,  and  thus 
placed  themselves  in  a  position  where  they  must  necessarily  suffer, 
if  it  be  withdrawn.^ 

§  983.  There  is  a  vast  and  apparent  distinction  between  a 
refusal  to  fulfill  an  executory  contract,  and  the  destruction  or 
deprivation  of  a  right,  whicli  lias  actually  vested.  No  man  is 
allowed  to  keep  the  property  of  others,  by  inducing  them  to  place 
it  upon  his  soil  and  then  I'efusing  a  right  of  entiy  to  regain  it. 
The  estoppel  is  properl)^  ajtplied,  and  without  divesting  the  title 
to  the  land,  prevents  its  ])eing  used  as  a  means  of  injustice.  Thus 
tlie  plaintiff's  father,  by  oral  license,  permitted  the  defendants  to 
lower  the  bank  of  a  river,  and  make  a  weir  above  the  plaintiff's 
mill,  whereby  less  water  than  before  flowed  to  the  mill.  It  was 
held,  that  plaintiff"  could  not  sue  the  defendants  for  continuing 
the  weir.  "  We  consider  the  license,"  said  Tindal,  C  J.,  in 
entering  the  judgment,  '*  to  be  simply  an  acknowledgment,  on  the 
part  of  the  plaintiff's  father,  that  he  wanted  the  water  no  longer 
for  the  purposes  of  Jiis   mill,  and  that  he  gave  back   again  and 

'  Dark  v.  .Jolinson,  56  Pa.   St.  164;  v.  R.  R.  Co.,  71  Ind.  265;  Snowden  v. 

People  V.  Goodwin,  5  N.  Y.  568;  Mur-  Vilas,  19  Ind.  310;   Stephens  v.  Beu- 

ble  V.  Whitney,  28  N.  Y.  297;  Thomp-  .son,  19  Ind.  367;  Hodgson  v.  Jeffrie.s 

son   V.   McElarney,    82   Pa.    St.    174;  52  Ind.  334;   Nowlin  v.   Whipple,   79 

Marsh  v.   Weckerly,  13   Pa.  St.  250.  Ind.  481 ;  Hydraulic  Co.  v.  R.  R.  Co., 

»  Huff  V.  McAuley,  53  Pa.  St.  206.  29  Ohio  St.  343;   Miller  v.  Brown,  33 

^  Simons  V.  Morehouse,  88  Ind.  391;  Ohio  St.  547;  Pierpont  v.  Barnard,  6 

U.  S.  V.  R.  R.,  1  Hugh.  138;  Buchan  N.  Y.  279. 


1108  Affkcting   Title  to  Land. 

yielded  np,  so  far  as  he  was  concerned,  that  quantity  of  water 
which  found  its  way  over  the  weir  which  he  then  consented 
should  be  erected  by  the  defendants.  And  we  think  after  he  has 
once  clearly  signified  such  relinquishment,  whether  b}'  words  or 
acts,  and  suffered  other  persons  to  act  on  the  faith  of  such  relin- 
quishment, and  to  incur  expense  in  doing  the  very  act  to  which 
his  consent  was  given,  it  is  too  late  then  to  retract  such  consent, 
or  to  throw  on  those  other  persons  tlm  burden  of  restoring  mat- 
ters to  their  former  state  and  condition."  He  said  further  :  "  This 
is  not  a  license  to  do  acts  which  consist  in  repetition,  as  to  walk 
in  a  park,  to  use  a  carriage-way,  to  lish  in  the  waters  of  another, 
or  the  like  ;  which  license,  if  countermanded,  the  party  is  put  in 
the  same  situation  as  he  was  before  it  was  granted  ;  but  this  is  a 
license  to  construct  a  work  which  is  attended  with  expense  to  the 
])arty  usini;'  the  license  ;  so  that  after  the  same  is  counternumded, 
the  party  to  whom  it  was  granted  may  sustain  a  heavy  loss.  It  is 
a  license  to  do  something  that,  in  its  nature,  seems  intended  to  be 
permanent  and  continuing."^ 

§  984-.  Whenever  a  party  has  induced  another,  upon  the  faith 
of  his  promise,  though  verbal,  to  expend  money  or  labor,  for 
which  he  can  only  be  remunerated  by  the  enjoyment  of  the  thing 
so  promised,  equity  will  compel  the  promisor  to  give  such  deed 
or  writing  as  shall  be  requisite  to  secure  the  possessor  in  the 
enjoyment  of  what  was  promised,  and,  in  those  States  where  there 
are  no  courts  of  equity  to  compel  such  things  to  be  done,  courts 
of  law  consider  the  thing  as  actually  done,  and  the  grantee  will 
accordingly  be  protected  in  the  enjoyment  of  the  thing  promised." 
This  principle  has  a  much  wider  i-ange  in  equity,  which  draws 
the  line  between  participation  and  inducement,  in  the  shape  of 
assurances,    or    mutual    promises    and    mere    acquiescence,^    and 

'  Taylor  v.  "Wiiliers,  7  Taunt.  374;  Cas.    Abr.    522;    Thomas   v.   Sorrell, 

Liggius  V.  Inge.  7  Bing.  082.  Vaugli.   350;    Wood  v.  Leadbitler,  13 

-  MeKillip    V.  Mcllheny,   4    Watts,  M.  A;  W.  844;  Pierpout  v.   Barnard, 

317;  Swartz  v.  Swuriz,  4   Pa.  St.  353;  6  N.  Y.  279. 

Rerick  v.    Kerns.    14   S.    &    H.    207;         »  AYells  v.  Pierce,  27  111.  503;   Sotn- 

IJoud   V.    Hopkins,    1   S.    &   L.    433;  er>;ctsiiire  v.  Harcomt,  2   De  G.  E.  & 

Clement  v.  Durgin,  5  Me.  9;  Addiscm  J.  596;  Beaufort  v.  Patrick,  17  Be;i.v. 

V.    Hack,    2    Gill,    521;    Caldwell    v.  70:  Mold  v.  Wheatcroft,  6  Jur.  N.  S. 

Scott,  10  Yerg.  209;  Jackson^.  Cator,  2;  Cumberland   v.    JMcLannaban,   59 

6  Yes.   C'JO;  Short   v.   Taylor,   2   Eq.  Pa.    St.    23;    Ingersol     v.   Horton,  7 


Equitable  Estoppel.  1109 

enforces  agreements  which  have  been  so  far  executed  by  an 
actual  transfer  of  possession,  as  to  put  their  existence  beyond 
question,  and  renders  it  ditiicult  to  restore  the  parties  to  their 
actual  position,  without  injustice,  and  a  license  which  has  been 
acted  upon,  falls  directlj^  within  this  principle,  and  stands  in  the 
same  position  with  other  executed  agreements. 

%  §  985.  The  principle  on  which  chancery  precludes  men  from 
falsifying  hopes  or  expectations,  on  which  others  have  acted,  now 
forms  one  of  the  most  pi'ominent  doctrines  of  the  common  law, 
under  the  title  of  equitable  estoppel,  and  enables  a  court  of  law 
to  do  that  indirectly,  which  would  otherwise  fall  clearly  beyond 
the  scope  of  its  powers.  Wlien  a  thing  sold  or  given,  is  at  the 
time  on  the  land  of  him  who  gives  it,  he  will  be  estopped  from 
defeating  his  own  grant,  by  refusing  the  grantee  permission  to 
enter  on  the  land  for  the  purpose  of  carrying  the  gift  away.  An 
executed  license  stands  on  the  same  footing,  at  law,  as  an  executed 
parol  agreement  in  equity,  and  is  equally  irrevocable,  whether 
lands  or  chattels  are  in  question.'  The  estoppel  is  limited  by  the 
purpose  for  which  it  is  called  into  being,  and  will  be  extended 
as  far  as  the  exigencies  of  the  case  and  the  purposes  of  justice 
require. 

§  986.  Where  a  person  entitled  to  a  right  in  the  nature  of  an 
easement  encourages  another,  though  passively,  to  acquire  title 
and  expend  money  on  tlie  assumption  that  that  right  will  not  be 
asserted,  he  will  not  be  permitted  in  a  court  of  equity  to  assert 
his  right  to  the  prejudice  or  injury  of  those  who  have  been 
encouraged,  by  his  acquiescence,  to  expend  money  on  the  faith 
that  his  rights  will  not  be  exercised  to  defeat  the  just  expectation 
upon  which  such  expenditures  have  been  made.  Where  such 
acquiescence  has  continued  for  the  period  of  tw^enty  years,  or 
even  less,  his  right  is  extinguished  by  estoppel. «     The  owner  of 

Mich,  405;  Farley   v.  Vaughn,  1  Cal.  bard,  59  111.  335;  King  v.   Batteison, 

227.  6  T.  R.  554;    Copeland  v.   Copeland, 

'  Woodbury  v.  Parshley,  7  N.  H.  28  Me.  525;  Shaw  v.  Beebe,  35  Vt. 

237;  Sheffield  v.  Call  is,  3  Ga.  82;  Wil-  205. 

son   V.    Chalfant,    15   Ohio,  248;  Cle-  ''  R.  K.  Co.  v.  Pri)dden,  20  N.  J.  Eq. 

ment  V.  Durgin,  5  Me.  9;  Androscog-  530;  Higbee  y.  Camden,  &c.    Co.,  20 

gin  Co.  V.   Bragg,  11  N.  H.  102;  Pope  N.  J.  Eq.  435. 
V.  Henry,  14  Vt.  560;  Russell  v.  Hub- 


1110  Afp^kcting  Titlk  to  Land. 

land,  who  stands  by  witliont  objection,  and  sees  a  public  railroad 
constructed  over  it,  cannot,  after  the  road  is  completed,  or  lar^e 
expenditures  have  been  made  thereon  upon  the  faith  of  I  is 
apparent  acquiescence,  reclaim  the  land,  or  enjoin  its  use  by  the 
railroad  company.  In  such  case,  there  can  only  remain  to  the 
owner  a  right  of  compensation.'  Thus  persons  holding  lai'/  in 
common,  who  grant  a  license  to  erect  a  dam,  each  of  them  is 
estopped  to  claim  damages  for  an  injui'v  to  land  held  by  either 
in  severalty."  Plaintiff  sued  defendant  for  damages  for  Hooding 
his  land  by  a  dam  raised  to  an  unlawful  height.  Defendant 
answered  that  the  dam  was  of  the  same  height  as  when  he  pur- 
chased the  premises  ;  that  he  was  a  stranger  and  knew  nothing  of 
the  lawful  height  of  the  dam,  but  that  the  plaintiff  knew  it ;  that 
he  made  incpiiries  of  other  residents  in  the  neighborhood  before 
purchasing,  and  with  a  view  to  the  purchase,  and  was  assured  by 
them  that  the  dam  was  of  lawful  height ;  that  plaintiff  knew  of 
such  inquiries  and  information  before  the  purchase,  and  did  not 
notify  him  to  the  contrary.  These  facts  constituted  an  estoppel 
if  the  purchase-money,  or  any  part  of  it,  had  been  paid.^ 

§  987.  An  estoppel  hi  pais  can  only  be  set  up  as  a  means  to 
prevent  injustice.*  And  not  when  a  person  through  misappre- 
hension, ignorance  or  inadvertence,  does  acts  or  makes  declara- 
tions that  mislead  another  to  his  injury,  but  where  at  the  same 
time  there  is  no  willful  deception  or  culpable  negligence,  and  no 
intention  that  the  representation  should  be  acted  upon  as  true  by 
the  other  party,  and  nothing  that  is  equivalent  to  a  promise  that 
the  representation  is  true.^  It  must  appear  that  there  was  fraud 
or  gross  neglect;  that  the  party  making  the  admission,  by  his 
declaration  or  conduct,  was  apprised  of  the  true  state  of  his  own 
title  ;  and  that  others  were  acting  in  ignorance  of  it  ;  that  he 
intended  to  deceive  or  was  culpably  negligent  in  the  non-assertion 

'  Goodin  v.  Cincinnati,  &c.    Co.,  18  Doub  v.  iNIason,  2   Md.  380;  Bittings' 

Ohio  St.  169;  Evansvillc  v.  Grady,  6  Appeal,  17  Pa.    St.    211;   Phillips  v. 

Bush,   144.  Cooper,  50  Miss.  722. 

2  Francis   v.   Boston,  &c.,   4   Pick.  ^  Hefner,  v.  Vandolah,   57  111.  520; 

365.  Horn  v.    Cole,  51    N.  H.  287;  Farist's 

^  Anderson  V.  Hubble,  93  Ind.  570;  Appeal,  39  Conn.  153;  Turnipseed  v. 

S.  C,  47  Am.  R.  394.  Hudson,   50   Miss.    429;   Danforth  v. 

♦  Thorne  v.    Mosher,   20  N.  J.  E.  Adams,  29  Coon.  107. 
257:  Thomas  v.  Bowman.  29  111.  426; 


Equitable  Estoppel.  1111 

of  liis  rights  ;  that  the  other  party  had  no  knowledge,  or  means 
of  acquiring  knowledge,  of  the  true  state  of  the  title,  and  that  he 
relied  upon  such  admission  to  his  injury.'  The  declarations  must 
have  been  the  main  inducements  of  the  purchase.''^  Representa- 
tion or  silence  must  not  only  have  misled,  bu\  have  been  intended 
so  to  mislead  ;  or  at  least  there  must  have  been  such  culpable 
negligence  or  carelessness  as  amounts  to  such  intention.  Reason- 
able care  on  the  one  side  or  negligence  on  the  other,  will  not 
estop.'  The  circumstances  must  be  such,  in  case  of  silence,  as  to 
render  it  the  duty  of  the  party  to  speak.  But  it  has  been  held  that 
there  can  be  no  verbal  estoppel,*  none  by  a  contract  invalid  under 
the  statute  of  frauds.^  And  not  by  a  parol  promise  of  which 
there  can  be  no  specific  performance.''  This  estoppel  does  not 
apply  to  an  after-acquired  title.'  The  cases  cited  will  serve  in  a 
measure  to  illustrate  the  rules  adopted  and  the  manner  in  which 
estoppels  in  pais,  or  technically  speaking,  equitable  estoppels, 
have  been  and  are  applied  to  questions  concerning  the  title  to 
real  estate  and  pei'sonal  property.  The  rules  in  regard  to  estop- 
pels by  deed  will,  as  we  have  already  noticed,  be  found  to  be 
more  uniform  and  systematic  in  regard  to  their  nse  and  applica- 
tion. 

iBoggsv.  Merced  Co.,  14  Cal.  279;  Baker,  64  Mo.  218;  Shaw  v.  Beebe, 

E.    R.    Co.   V.   Harpold,  19  Ind.  347;  35  Vt.  205. 

Woods   V.    Wilson,    37   Pa.    St.    379;  ^  Taylor  v.  Ely,  25  Comi.  250;  Tur- 

Brewer  v.R.  R.,  5  Met.  478;  Brubaker  ner  v.    Coffin,   12  Allen,  401;  Plumer 

V.    Okeson,  36   Pa.  St.    519;  CalifE  v.  v.  Lord,  9  Allen,  455. 

Hillhouse,  3  Minn.  311;  Robinson  v.  ■*  Hamblin  v.  Hamblin,  19  Me.  141; 

Barnett,  18  Fla.   60-J;    S.  C,  45  Am.  Stiucbfield  v.  Emerson,  52  Me.    465; 

R.  24.  See  Haj^es    v.    Livingston,  34  Mich. 

""  Duell  V.  Bear,  &c.,  5  Cal.  84;  Woo-  384. 

ley  V.  Edson,  35    Vt.  214;    Austin  v.  ^  Miranville  v.  Silverthorn,  48   Pa. 

Thompson,  45  N.  H.  113;  Hazleton  v.  St.  147. 

Batchelder,   44  N.    H.    40;    Califl  v.  « Wright    v.    De  Graff,  14     Mich. 

Hillhouse,   3  Minn.   311;    Turner  v.  164. 

'  Gluckauf  v.  Reed,  22  Cal.  468. 


1112  TiiK  Law   of  Estoppel. 


CHAPTER    XVI. 

THE  APPLICATION  OF  EQUITABLE  ESTOPPELS  TO  INSTRU- 
MENTS NOT  UNDER  SEAL. 

NOTES,  BILLS,  BONDS,  CONTRACTS,    DEBTS,    ETC.,   ETC. 

Section  988.  The  apj^licatioii  of  this  branch  of  estoppels,  un- 
der the  principles  of  commercial  jurisprudence,  is  attended  with 
as  much  of  the  same  harshness  and  rigor,  which  were  aj)plied  to 
technical  or  legal  estoppels,  under  the  common  law.  Tlie  distinc- 
tion between  legal  and  equitable  estoppels,  is  forcibly  illustrated 
in  their  application  to  obligations,  under  seal,  for  the  payment  of 
raone3\  In  this  country,  the  estoppel  attached  by  the  common 
law  to  scaled  instruments,  has  been  to  so  great  extent  destroyed 
or  modified  by  statute  or  custom,  as  to  permit  fraud  or  a  failure 
of  consideration  to  be  pleaded  or  given  in  evidence,  as  a  defense 
to  an  action  brought  upon  a  specialty.  But  the  modern  decisions 
have  established  another  important  change  in  the  application  of 
the  estoppel  to  this  effect.  That  if  such  an  instrument  be  pur- 
chased by  a  third  person,  in  consequence  of  a  statement  by  the 
covenantor  or  obligor  that  he  is  liable  to  pa}'  it,  the  admission 
operates  and  precludes  him  from  controverting  it,  and  setting  up 
a  defense  in  a  suit  brought  for  the  benefit  of  the  purchaser,  which 
would  have  been  available  against  the  assignee.  Thus,  while  the 
common  law  estoppel  of  a  declaration  of  debt,  solemnly  made  un-. 
der  seal  to  the  obligee,  has  been  to  a  great  extent  done  away  with, 
a  subsequent  parol  promise  or  statement  to  an  assignee,  has  in 
lieu  of  the  common  law  estoppel,  become  binding  and  acquired 
the  conclusive  force  and  effect  which  the  former  has  lost.' 

1  Watson    V.    McLaren,     19   AVcml.  S.  &  K.  18;  Buckner  v.  Smitli,  1  Wash. 

557;  Holbrook  v.  Burt,  23  Pick.  546;  296;  Elliott  v.  Callace,  1  P.  &  W.  24; 

Decker  V.  Eisenhavier,  1  Pa.   St.  476;  Jones  v.    Hardest3^   10   G.  &  J.  404; 

Davis  V.  Thomas,  5  Leigh,  1;  Brown  Sand  v.    Lacoste,    5   How.    471;  Sar- 

V.  Wright,17  Ark.  9;Petriev.  Feeler,  geant  v.  Sargeaut,  18   Vt.   371;  Foote 

24  Wend.  172;  Foster  v.  Newlaud,  21  v.   Ketchum,    15   Vt.    258;    Bank    v. 

Wend.  94;    McMullen  v.  Wenuer,  16  Jerome,  18  Conn.  443. 


Unsealed  Instruments.  1113 

§  989.  In  a  leading  English  case,'  Bj'les,  J.,  says  :  "  The  argu- 
ments drawn  from  negotiable  instruments  appear  altogether  inap- 
plicable." The  object  of  the  law  merchant  as  to  bills  and  notes 
made  or  become  payable  to  bearer,  is  to  secure  theii-  circulation  as 
money  ;  therefore,  honest  acquisition  confers  title.  To  this  despotic 
but  necessary  principle,  the  ordinary  rules  of  the  common  law  are 
made  to  bend.  The  misapplication  of  a  genuine  signature  written 
across  a  slip  of  staniped  paper  (which  transaction  being  a  forgery 
would  in  ordinary  cases  convey  no  title),  may  give  a  good  title  to 
any  sum  fraudulently  inscribed  within  the  limits  of  the  stamp, 
and  in  America,  where  there  are  no  stamp  laws,  to  any  sum 
whatsoever,  negligence,  in  the  maker  of  an  instrument  payable 
to  bearer,  makes  no  difference  in  his  liability  to  an  honest  holder 
for  value  ;  the  instrument  may  be  lost  by  the  maker  without  his 
negligence,  or  stolen  from  him,  still  he  must  pay.  The  negligence 
of  the  holder,  on  the  other  hand,  makes  no  difference  in  his  title. 
However  gross  the  holder's  negligence,  if  it  stop  short  of  fraud, 
he  has  a  title.  The  truth  is,  that  in  the  case  of  a  bill  of 
exchange  or  promissory  note,  as  well  as  in  the  case  of  a  deed,  the 
law  respects  the  nature  and  uses  of  the  instrument,  more  than  its 
own  ordinary  rules.  Alderson,  B.,''  refused  to  adopt  the  proposi- 
tion that  the  previous  party  to  a  bill  is  estopped  from  setting  up  the 
defense  of  fraud  against  the  case  of  a  honajide  holder  for  value, 
and  thought  it  better  to  say  that  by  the  law  merchant  every  per- 
son having  possession  of  a  bill,  has,  notwithstanding  any  fraud  on 
his  part,  either  in  accpiiring  or  transferring  it,  full  authority  to 
transfer  it  to  a  hona  fide  holder  for  value. 

"  It  seems,  therefore,  doubtful,  whether  the  cases  as  to  the 
liability  of  a  man  who  signs  a  blank  l)ill  or  note  or  cheque,  are 
founded  on  the  doctrine  of  estoppel,  or  on  a  rule  of  the  law  mer- 
chant, that  an  actual  authority  is  thereby  conferred  on  the  person 
in  whose  hands  the  instrument  is.  It  is  however  plain,  that  none 
of  the  decisions  as  to  the  effect  of  signing  instruments  in  blank, 
extend  beyond  the  ease  of  negotiable  instruments,  and  it  seems 
to  me,  that  it  M'ould  be  inconvenient  and  dangerous  to  apply  the 

'  Swan  V.  North,  &c.  Co. ,  7  C.  B  See  also  Goodwin  v.  Roberts,  L.  R. 

N.  S.  400;  7  11.  &  N.  G03  ;   2  II.  »&  C.  1  App.  Cas.  476;  Rumball  v.  Bank, 

17o.  L.  R.  2  Q.  B.  D.  194. 

-  Marstou  v.  Allen,  8  31.  k,  W.  494. 


1114  The  Law  of  Estoppel. 

principle  of  them  any  furtlier."  In  the  satne  case  Wilde,  B.,  says  : 
''  It  has  been  contended  that  the  doctrine  of  estoppel  is  limited 
in  its  application  to  cases  arising  on  negotiable  instruments. 
Bnt  why  should  it  be  so?  It  rests  upon  a  ground  totally  different 
from  that  which  renders  negotiable  instruments  valid.  Tlie  law 
of  negotiability  is  the  law  of  property  passing  by  deliver}-.  It 
gives  to  actual  transfer  the  effect  of  real  title.  The  law  merchant 
validates,  in  the  interest  of  commerce,  a  transaction  which  the 
common  law  would  declare  void  for  want  of  title  or  authority ; 
and  transactions  within  its  operation  are  as  absolutely  valid  and 
effectual,  as  if  made  with  title  or  authority.  But  how  different 
is  the  principle  of  estoppel  ?  It  validates  no  transaction  whatever. 
It  all  along  implies  a  transaction  itself  invalid,  and  a  person  who 
is  forbidden  for  equitable  reasons  to  set  up  that  invalidity.  It  is 
therefore  independent  of  negotiability  ;  it  operates  in  a  diffei'cnt 
way;  founded  upon  principles  of  equity  and  fairness  between 
man  and  man,  it  rests  on  a  wider  basis  than  the  principle  which 
supports  title  in  negotiable  instruments;  and  as  it  has  no  relation 
to  commercial  intercourse  or  the  exigencies  of  trade,  so  it  is  not 
confined  to  instruments  which  have  become  negotiable  by  the 
demands  of  commerce. 

§  990.  As  regards  the  application  of  the  estoppel,  there  is  no 
difference  whether  the  debt  assigned  is  a  simple  conti'act  debt  or 
one  under  seal ;  the  debtor  is  estopped  from  taking  advantage  of 
any  defense  that  was  concealed  or  withheld  from  the  assignee.' 
It  is  a  universal  rule  that  estoppels  shall  not  be  extended  by 
implication  or  intendment.  But  as  regards  this  class  of  estoppels, 
the  rule  is  not  applied  with  the  rigor  and  strictness,  with  which 
it  is  to  estoppels  by  record  and  deed.  Courts  are  inclined  to 
extend  rather  than  restrict  their  operation  of  this  class  of 
estoppels  in  their  application  to  mercantile  transactions  where 
men  are  to  a  great  extent  compelled  to  trust  to  appearances.' 
The  estoppel  must,  however,  be  limited  within  such  bounds  as  are 

'  Plant    V.    Voeglin,  30    Al;i.    160;  344;   Brooks   v.  ]Martin,  43   Ala.  360; 

Powers  V.  Talbot.  11  Ind.  1;  Forsythc  Rose  v.   Tceple,   IG  Ind.  37;   Rose  v. 

V.  Day,  46  Mc  166;   Buckner   v.  Col-  Wallace,  11  Ind.  112;  Drake  v.  Foster, 

cote,  28  Miss.  432;  Homer  v.  Brown,  38    Ala.    649;    Davis   v.   Thomas,    3 

16  Howard.  354;  Wright  v.  Alien,  16  Leigh,  1. 

Ind.  284;  Morrison  v,  Weaver,  16  Ind.  '  State  v.  Pepper,  CI  Ind.  76. 


Unsealed  Instruments.  1115 

sufficient  to  place  the  party  wliohas  dealt  on  the  faith  of  appear- 
ances which  turn  out  to  be  incorrect,  in  the  same  position  with 
reference  to  the  author  of  such  appearances  as  if  they  were  really 
true.  The  utility  of  this  class  of  estoppels  has  met  with  great 
favor  by  courts,  while  they  have  been  hostile  to  their  technicality. 
Perceiving  how  necessary  and  essential  it  is  to  the  easy  and  rapid 
transaction  of  business,  that  one  man  should  be  able  to  put  faith 
in  the  conduct  and  representations  of  his  fellow  man,  the 
courts  have  almost  uniformly  decided  and  established  the  princi- 
ple that  such  representations  and  conduct  shall  be  binding  and 
conclusive,  in  cases  where  a  mischief  or  injustice  would  be  caused 
by  treating  them  in  effect  as  revocable,  while  they  are  unwilling 
to  allow  men  to  be  inveigled  by  former  statements  and  admis- 
sions, which  are  regarded  as  unimportant  when  made,  which 
neither  deceive  nor  induce  any  one  to  alter  their  position.  Sucli 
estoppels  are  regarded  and  held  to  be  as  odious  as  they  were 
formerly. 

§  991.  These  estoppels  arise  where  a  party  by  his  words  or 
conduct  willfully  causes  another  to  believe  in  the  existence  of  a 
certain  state  of  things,  and  induces  him  to  act  on  that  belief  and 
so  alter  his  owm  previous  position.'  A  party  who  so  acted  is 
estopped  and  precluded  from  falsifying  his  own  representation. 
The  doctrine  of  estoppel  in  jpais  is  applied  in  a  great  variety  of 
circumstances,  but  its  great  object  is  to  prevent  injustice  being 
done  where  one  party  has  been  led  into  eri-or  by  the  fault  or 
fraud  of  the  other.  It  is  a  most  valuable  doctrine  for  the  pro- 
motion of  justice ;  but  it  can  have  no  application  except  where 
the  party  invoking  it  canshow  that  he  has  been  induced  to  act  or 
refrain  from  acting  by  the  acts  or  conduct  of  the  adverse  party, 
under  circumstances  that  would  naturally  and  rationally  influence 

'  Simpson  v.   Moore,    5    Lea,    372;  Neb.   523;  Grant  v.  Cropsey,  8  Neb. 

Brown    v.    Wheeler,    17    Conn.    345;  205;   Davis   v.  Handy,  37   N.   H.   65; 

Whitacre  v.    Culver,    8    Minn.    133;  Bank  v.  Rudolph,  5  Neb.  527;  Moffitt 

Kinney  V.  Farnsworth,  17  Conn.  345;  v.  Adams,  60  Iowa,  44;  Mills  v.  Lefi, 

Rangelyv.  Spring,  22  Me.  130;  Preston  60  Iowa,   168;    Verrier  v.   Gillon,   14 

V.   Mann,   25    Conn.    118;    Heath    v.  Phila.  2;   Lengan   v.  Ilazelwood,  11 

Bank,  44  N.  H.    174;   Cummings  v.  Lea,  539;  Vogel  v.  Breed,  14  III.  App. 

Webster,  43  Me.  192;  Turner  v.  Flinu,  538;  Williams  v.  Wells,  62  Iowa,  740; 

72  Ala.  532;  Guicharde  v.  Braude,  57  Ante,  ch.  XII. 
Wis.    534;    Newman   v.    Mueller,    16 


1116  The  Law  of  Estoppel. 

ordinary  men.  It  can  tlicrcforc  only  be  set  up  and  relied  on  by 
a  pai'ty  who  has  been  actually  misled  to  his  injury  ;  for  if  not  so 
misled  he  can  have  no  ground  for  the  protection  that  the  prin- 
ciple affords.  The  doctrine  has  been  applied  in  many  cases  by 
the  courts  of  most  all  civilized  countries.'  If  one  party  dealing 
with  another  puts  fuith  a  sealed  instrument  as  his  deed,  or  if  he 
represents  it  to  be  a  binding  obligation  which  he  has  himself 
executed,  he  cannot  be  heard  in  any  court  of  law  or  equity  to  say, 
as  against  a  party  who  has  dealt  with  him  on  the  faith  of  the 
correctness  of  the  representation,  that  the  instrument  is  not  his 
deed,  or  that  he  never  executed  it ;  or  that  it  is  not  a  binding 
obligation.' 

§  992.  Any  act  of  the  principal  which  estops  him  from  set- 
ting up  a  defense  personal  to  himself,  operates  equally  against 
his  surety.  Where  the  principal  maker  of  a  promissory  note  not 
governed  by  the  law  merchant,  was  informed  by  a  person  that 
the  latter  was  about  to  purchase  said  note,  and  would  do  so  if  it 
was  good,  and  if  there  was  no  defense  to  it,  and  said  principal 
thereupon  informed  such  person  that  the  note  was  good,  that 
there  was  no  defense  to  it,  and  that  it  would  be  paid  to  such 
person  if  he  should  purchase  it,  and,  by  reason  of  such  representa- 
tions, such  person  thereafter  purchased  the  note,  and  the  same 
was  assigned  to  him.  In  a  suit  on  the  note  by  a  subsequent 
assignee  of  such  purchaser,  the  principal  and  liis  sureties  were 
estopped  from  setting  up  a  defense,  personal  to  the  principal, 
existing  at  the  time  of  said  representations. 

1  Preston   V.    Mann,   25   Conn.  128;  v.    Roberts,    3   Lans.  14;    Wadtlcl    v. 

Bank  v.  Bank,  50  N.  Y.  575;  Hayner  Morris,  26  Wis.  611;    Mahaska  v.  Des 

V.  Ins.    Co.,  :    Howard    v.  Moines,  28   111.  437;   Erie,  &c.  Co.  v. 

Hudson,  2   E.  it   B.   1;   Voorlicos   v.  Delaware,  &c.  Co.,  21  N.  J.  E.  383: 

Olmstead,  6  T.  &  C.  172;   Hamilton  Bramble  v.  State.  41  JId.  435;  Dean  v. 

V.  R.  R.  Co.,  44  Md.  551;   Baliia  Co.,  Martin,  24  La.  Ann.  103;  Trowl)ridge 

in  re,  L.  R.  3  Q.  B.  584;  Brown  v.  Ins.  v.    Mathews,  28  Wis.  656;   Davidson 

Co.,  42   Md.  385;   McCance   v.  R.  R.  v.  Silliman,  24  La.  An.   225;  Alexan- 

Co.,  24  L.  J.  E.xchq.  39;  Lathrop  v.  dcr  v.  W^ilter,  8  Gill,  252;  Homer  v. 

Knapp,  27  Wis.  215;  Winchell  v.  Grosholz,  38  Md.  520;  Ante,  Ch.  XII. 
Edwards,  67  111.  41;  Miller  V.  Springer,  ^^  Straffon,  in   re,  22   L.    J.  ch.  202; 

70  Pa.  St.  269;  Ford  v.  Smith,  27  Wis.  Williams  v.  Robinson,  73  Me.  186;  S. 

261;   Leeper  v.  Hersmau,  58   111.  218;  C.  40   Am.   R.  352;    McCourt  v.  Mc- 

Hall  V.  Dock  Co.,  23  Wis.  276;  Favil  Cabe,  46  Wis.  596. 


Ux\SEALED  Instruments.  1117 

§  993.  An  iinqualilied  assurance  by  a  debtor  that  lie  Las  no 
defense,  or  that  the  debt  will  be  paid,  will  inure  as  a  new  con- 
tract, and  is  equally  binding,  whether  it  is  made  under  a  niistaken 
impression  or  with  a  fraudulent  design  to  conceal  the  truth  from 
the  assignee.'  Such  an  estoppel  arises  where  the  representations 
are  recklessly  made,  without  knowing  or  inquiring  into  the  real 
state  of  the  case."''  A  man  who  acts  or  speaks  in  a  way  to  influence 
the  conduct  of  others,  cannot  escape  from  the  responsibility,  on 
the  ground  that  he  had  no  intent  to  mislead,  and  believe  what  he 
uttered  to  be  true.  When  language  is  ambiguous,  and  spoken  in 
a  double  sense,  the  meaning  should  be  preferred  whicli  it  was 
meant  to  have  in  the  ears  of  those  to  whom  it  M'as  addressed.* 
Every  one  whc>  participates  in  the  sale  of  a  bond  or  note,  or  takes 
an  active  part  in  inducing  another  to  become  a  purchaser,  M'ill  be 
bound  by  what  he  does  or  says  in  the  course  of  the  transaction, 
whether  it  results  from  mistake  or  fi-oni  any  other  cause,  while 
his  acts  and  declarations  will  be  weighed,  and  not  interpreted  as 
meaning  more  than  tliey  import."  Thus,  where  a  party  in  pur- 
suance of  an  agreeuicnt  made  with  a  railroad  company,  guar- 
anteed the  paynuiut  of  interest  on  certain  of  its  bonds;  and  these 
bonds  subsequently  cauje  into  possession  of  sucli  party,  who  sold 
them  for  a  valualjle  consideration  ;  in  an  action  brought  to  recover 
the  interest  due  on  such  bonds,  the  party  having  transferred  the 
bonds  and  received  the  consideration  therefor,  was  estopped  from 
denying  its  liabilities  on  its  guarantee  of  the  interest."^  The  pur- 
cJuise  of  a  debt  on  the  faith  of  an  admission  by  the  debtor  of  his 
liability  to  pay  for  it,  deprives  him  of  the  right  of  making  any 
defense  to  any  suit  which  may  be  brought  subsequently  on 
behalf  of  the  purchaser.''    The  purchaser  of  a  promissory  note,  on 

•  Elliou  V.   Callace.  1   P.  &  W.  34;      210;  Keed   v.   Vancleve,  27   N.  J.  L. 
McCiibe  V.   Kauey,   82    lud.  8U'J.  852;  Simpsou  v.  Moore,  5  Lea,  372. 

"Preston   \.   Manu,    25   Coiiii.  118;  ^  Anio't    v.   Kaihva)^    Co.,  5    Hun, 

Smith  V.  Stone,  37   B.  Mou.  1(38;  Cul  GU8. 

huun    V.    Kichardsou,  80   Conu.  210;  "Paul    v.    Bauglier,    8    Ind.    501; 

Simpsou  V.  Moore,  5   Lea,   872;  iJaii-  Buckner  v.  Sniitli,l  Wash.  296;  Tobey 

lonh  V.  Adams,  29  (-'oun.  107.  v.  (.'hipnian,   18   Allen,    128;  Vauder- 

=*  AYLeeltou  v.  Haulesty,  8  Ell.  &  B.  poel  v.  Brake,  28  Ind.  480;  MeMulleu 

282;  Graee    v.    McKissaek,    49    Ala.  v.  Warner,  10  S.  &  K.    18;  Elliott  v. 

168  (Wallace,  1  P.  &  W.  24;  Sloan  v.  Rich- 

*  Cambridge  v.  Llttletield.  6  Cush  moud   Co.,  6  Blackfd.  175;  Williams 


1118  The  Law  of  Estoppel 

the  representation  of  the  maker  that  it  is  good  and  valid  in  every 
respect,  may  recover  the  full  amount  of  the  maker  ;  though  pur- 
chased at  a  discount.  And  the  maker  is  estopped  from  availing 
himself  of  any  defense  which  he  had  against  the  payee.'  When 
a  note  is  purchased  by  a  third  person  on  the  faith  of  a  promise 
by  the  maker  to  pay  it,  the  latter  is  thereby  esto])ped  from  set- 
ting up  the  invalidity  of  the  note  as  between  himself  and  the 
payee,  whether  on  the  ground  of  fraud  in  the  original  contract, 
not  known  to  the  maker  at  the  time  of  such  promise,  or  of  sub- 
sequent failure  of  consideration  ;  and  will  be  compelled  to  pay 
the  assignee  at  all  events.' 

§  994.  Where  a  surety  signs  an  instrument  apparently  perfect 
and  complete,  and  hands  it  to  his  principal,  to  be  finally  delivered 
to  the  obligee,  only  when  it  shall  have  been  executed  by  certain 
others  as  co-sureties,  and  the  princij^al,  without  complying  with 
the  condition,  delivers  the  instrument  to  tlie  obligee,  who  has  no 
notice,  actual  or  constructive  of  the  condition,  and  takes  the 
instrument  in  good  faith,  such  surety  will  be  bound.  The  payee 
is  not  affected  by  an  agreement,  whereby  he  has  no  notice,  be- 
tween the  makers,  A.  &  B.,  that  a  note  be  delivered  without 
the  signature  of  C  (Post,  §  983.)  AVhen  a  debtor  willfully 
admits  a  greater  liability  than  actually  exists,  or  conceals 
the  equity  or  defense  on  which  he  subsequently  relies,  such 
concealment  or  admission  is  absolutely  conclusive  in  favor 
of  the  assignee,  if  acted  on  by  him  in  accepting  the  assign- 
ment.* A  debtor  will  not  be  prejudiced  by  failing  to  state  a 
defense  of  which  he  is  ignorant,  nor  unless  his  statements  are 
valid  and  acted  on  by  the  assignee  in  taking  the  assignment.     No 

V.   Parker,    1   Ind.   230;  Crout  v.  De-  «  Cloud  v.  Whiting,  38  Ala.  57. 

Wolf,  1  K.  I.  393;  Swenson  v.AValkcr,  ^  Davis  v.  Gray,  CI  Tex.  506. 

3  Tex.  93;  •*  Jones  v.    Ilardesty,   10  Gill   &  J. 

'  Tobey  v.  Chipman,  13  Allen,  123;  404;    Sands  v.  Lacoste,  5   How.  471; 

Honore   v.    Dougherly,    4   Bibb,  280;  Decker    v.    Eisenhauer,     1     Pa.    St. 

Sand  V.  Lacoste,  6  Miss.   471;  Hariier  476;  Sargeant  v.  Sargeant,  18  Vt.  371; 

V.  .Johnson,  1  S.  &  M.  Ch.  563;  Agnes  Foot  v.    Ketchum,  15  Vt.  258;  Bank 

V.  Mitchell,  11   Miss.    683;  Adams  v,  v.  .Jerome,  18   Conn.  448;  Watson  v. 

Biancan,   6    liobt.    334;    Ingham    v.  v.  M'J^aren,  19    Wend.  557;  Petrie  v. 

Vaden,   3   Humph.   51;    Sargeant    v.  Feeter,  21  Wend.  172;  Jioe  v.  Jerome, 

Sargeant,   18  Vt.   371;  Farrington  v.  18  Conn.  138. 
Bank,  24  Barb.  554. 


Unsealed  Instruments.  1119 

admission,  however  formally  or  solemnly  made,  can  be  binding 
on  the  debtor,  without  specific  proof  that  it  has  injured  or  preju- 
diced the  assignee.'  Wliere  the  assignee  of  a  judgment  purcliased 
it  in  good  faith,  relying  upon  the  statement  of  the  defendant  tliat 
no  part  of  it  had  been  paid,  when  in  fact  a  payment  had  been 
made  by  the  defendant  to  the  plaintiff,  before  assignment,  the 
defendant  cannot,  as  against  the  assignee,  set  up  such  payment  as 
a  discharge  of  so  much  of  the  judgment,  nor,  by  confessing  a 
second  judgment  to  another  creditor,  can  he  enable  the  latter  to 
attack  the  tirst  judgment  iu  the  hands  of  such  assignee  for  the 
same  cause." 

§  995.  One  is  estopped  from  alleging  the  truth  when  his 
assertion  of  a  falsehood  or  his  silence  has  been  the  inducement  to 
action  by  another  party,  which  would  result  in  loss  but  for  the 
estoppel.  A  party  may  be  estopped  by  his  acts  or  his  declara- 
tions, made  even  in  mistake  of  his  rights,  if  by  them  others  have 
beed  led  to  the  expenditure  of  money.  A  party  will  be  e&topped 
from  taking  advantage  of  an  action  in  which  he  has  acquiesced 
for  his  own  benefit.^  If  the  payer  of  a  n'ote  stands  by  and  sees  it 
assigned  to  a  third  person,  without  giving  the  assignee  notice  of 
an  existing  defense,  he  shall  afterward  pay  the  amount  of  the 
note  to  the  assignee  ;  although  the  consideration  thereof  should 
have  entirely  failed,  and  whether  his  conduct  proceeded  from 
ignorance  or  design.* 

§  996.  In  the  case  of  equitable  estoppels,  the  burden  of  prooj 
is  on  those  who  seek  to  shut  out  evidence  which  is  prima  facie 
admissible,  or  exclude  a  defense  which  is  valid  under  the  ordinary 
rules  of  law ;  and  they  must  show,  in  order  to  be  successful,  not 
only  that  the  debt  or  demand  assigned  was  admitted  to  be  good, 
but  that  the  assignment  was  accepted  on  the  faith  of  the  adnjis- 

^  Hall  V.  Parmlee,  2  Md.  Cb.  137;  Gutterman  v.    Landis,   1.   W.   N.   0. 

Weaver  v.  Lynch,  25  Pa.  St.  449.  022;  Com.   v.  Moltz,  10  Pa.  531. 

=*  Rae  V.  Lawsou,  18  How.  Pr.  23.  "  Decker  v.  Eiseuliauer,  1  P.  &  W. 

3  Patterson  v.  Lytle,  11  Pa.  St.  53;  476;  Rudy  v.  Wenner,  16  S.  &  R.  28; 

Musser   v.    Oliver,   21    Pa.    St.    362;  Watt's  Appeal,  78  Pa.  St.  370;  Ackla 

Proxell  V.   Iron  Co.,  42   Pa.  St.  513;  v.   Ackla,    6    Pa.    St.    288;    Water's 

Ayres  v.    Wattson,   57  Pa.    St.    360;  Appeal,  35  Pa.  St.  523;  Reel  v.  Elder, 

Newman  v.  Edwards,  *34  Pa.  St.  32;  62  Pa.  St.  308. 
McCully  V.    R.    R.,   32  Pa.    St.   25; 


1120  The   Law  of  Estoppel. 

sion.  The  admission  must  not  only  be  contemporaneous  with 
and  precede  the  assignment,  but  must  l)e  made  directly  to  the 
assignee,  or  in  sucli  a  manner  as  to  jnslify  the  inference  that  it 
M'as  meant  to  reach  his  ears  and  induce  him  to  become  a  pur- 
chaser of  the  debt."  The  transfer  must  be  for  valne,  and  nut  a 
gift  or  benefaction,"  although  value  may  be  given  b}-  surrender- 
ing an  antecedent  security  or  obligation/  In  order  that  the 
principles  of  equitable  estoppels  may  be  made  aj)plicable  to 
instances  like  those  above  cited,  it  is  not  necessary  that  the  admis- 
sion be  made  in  express  terms.  It  is  sufficient  if  the  language  or 
conduct  of  the  debtor  is  such  as  to  lead  the  assignee  to  believe 
the  debt  is  valid,  and  may  be  purchased  with  safety.  A  man 
standing  by  and  seeing  an  instrument  from  which  he  has  been 
discharged  transferred  to  another  as  a  valid  and  existing  obliga- 
tion, is  as  much  bound  as  if  he  had  taken  an  active  part  in  the 
transaction." 

§  997.  Where  a  maker  of  a  note,  by  himself  or  agent,  repre- 
sents to  a  person  about  to  take  an  assignment  of  the  note  that  it 
is  a  valid  obligation,  that  he  has  no  defense  to  it,  he  cannot,  in 
an  action  brought  bj^  the  assignee  on  the  note,  jilead  a  failure  of 
consideration.'  And  where  a  note  is  transferred  to  a  creditor  fur 
an  antecedent  debt,  who  takeo  it  upon  the  statement  of  the 
maker,  he  is  estopped  to  deny  its  validity."  The  maker  of  an 
accommodation  note,  by  delivering  it  to  the  payee,  invests  him 
with  the  character  of  a  creditor,  and  if  a  third  party  in  the  belief 
tliat  such  note  is  given  for  actual  indebtedness,  from  the  makers 
to  such  payee,  at  the  solicitation  of  the  latter,  and  to  enable  him 
to  negotiate  it,  signs  such  note,  the  maker,  after  paying  the 
note,   is   estopped   from   claiming  contribution  from  him.'     A 

'  Eldred  v.  Ilazlett,  31  Pa.  St.  307;  '  Ahcni  v.  Good.spcod,  72  N.  Y. 
Martin  v.  Richter,  10  N.  J.  E.  510;  108;  Wilder  v.  Cowlos,  100  Mass.  47; 
Lounsbury  v.  Depew,  28  Barb.  44;  Cloud  v.  Whiting,  38  Ala.  57;  Camp- 
Plant  V.  Vogolin,  30  Ala.  160.  bell  v.  Nichols.  33  N.  ,J.L.  81;  Fcrgu- 

"  Weaver  V.  Lynch,  25   Pa.  St.  449.  son  v.  Hamilton,  35  Barb.  427;  Yan- 

3  Boyd  V.    Cumming,  17  N.  Y.  101;  derpoel   v.  Brake,    28   Iml.  130;  AVil- 

Roxboiough    V.   Messick,  6    Ohio  8.  liams  v.  Jackson,  28  Ind.  334;  Pliim- 

448.  mer  v.  Bank,  90  Ind.  380. 

♦  Greening  v.    Patton,  51  Wis.  146;  «  Fo.ster  v.  Xewland,   21  Wend.  94. 

Lee  V.   Kirkpatrick,  17  N.  J.  E.  274;  "  Melms    v.    Weiderhoff,    14   Wis. 

Libbey    v.    Pierce,    47    N.    H.    300;  18. 
Cambridge  v.  Littlefield,  6  Gush.  210. 


Unsealed  Instruments, 


1121 


party  who  intrusts  a  blank  acceptance  to  another,  who  fills  in  a 
larger  amount  than  that  fixed  by  the  acceptor  as  a  limit,  and  pro- 
cures it  to  be  discounted  by  a  bank,  which  acts  in  good  faith  and 
without  notice  of  fraud  upon  the  acceptor,  estops  the  acceptor  in 
an  action  upon  the  bill  by  the  bank,  from  setting  up  fraud  or 
foi-gery  as  a  defense  to  it.'  So  a  person  who  u)akes  his  negotiable 
note  and  gives  it  to  another  to  raise  mone_y  on,  is  bound  by  the 
note  to  a  third  person  who  takes  it  lor  value  ;  and,  in  this 
respect,  there  is  no  difference  between  a  promissory  note  and  a 
bill  of  exchange.^  The  same  rule  was  applied  to  a  mortgage, 
with  a  blank  for  the  mortgagee's  name/  If  the  maker  of  a 
promissory  note  tells  one  seeking  to  trade  for  it,  and  desirous 
to  know  whether  he  has  any  defense  against  it,  that  it  is  '•  all 
right,"  he  will  not  be  permitted  afterwards  to  dispute  this 
admission  when  sued  on  the  note..  It  is  such  an  admission  as 
estops  the  maker  from  denying  that  the  note  is  all  right,  if  the 
facts  upon  which  the  subsequent  defense  is  rested,  existed  at  the 
time  of  making  such  admission.  Such  admission  is  good  against 
the  maker  of  the  note,  if  it  be  negotiable,  not  due,  and  unpro- 
tested, whether  it  be  false  or  true,  or  fraudulent  or  innocent,  if 
it  is  made  so  as  to  have  a  tendency  to  mislead  or  deceive,  and 
has  that  effect.*     Declai'ing  a  note  to  one  about  to  purchase  it,  to 


'  Young  V.  Grote,  4  Bing.  253; 
Mitchell  V.  Colson,  7  Cow.  336;  Yio- 
lett  V.  Pattou,  5  Cranch,  142;  Russell 
V.  Lungstaff,  2  Doug.  514;  Fullerton 
V.  Sturgcs,  4  Ohio  St.  429;  Putnam  v. 
Sullivan,  4  Mass.  45;  Simpson  v. 
Board,  74  Pa.  St.  351;  Roberts  v. 
Tucker,  16  Q.  B.  560;  Halifax  v. 
Wheeiright,  L.  R.  10  Excliq.  183; 
Swan  V.  North,  &c.  Co.,  2  H.  &  C. 
175;  Ingham  v.  Primrose,  7  C.  B.  82; 
Van  Duzer  v.  Howe,  21  K  Y.  531; 
Freeman  v.  Cooke,  3  Exchq.  654; 
Arnold  V.  Bank,  L.  R.  1  C.  P.  D.  578; 
Baxendale  v.  Bennett,  L.  R.  3  Q.  B. 
D.  525 ;  Garrard  v.  Lewis,  L.  R.  10 
Q;  B.  D.  30;  Montague  v.  Perkins,  23 
L.  J.  C.  P.  187;  Foster  v.  Green,  7 
H.  &  N.  881. 

"  Hawkins  v  ISTeal,  60  Miss.  256; 
Meggett  V.  Baura,  57  Miss.  22. 

Vol-  I.— 71 


^  Hemmenway  v.  Mulock,  56  How. 
Pr.  38. 

■^  Wright  V.  Allen,  16  Ind.  284; 
Brooks  V.  Martin,  43  Ala,  300 ;  Clem- 
ents V.  Loggins,  2  Ala.  514;  Rose  v. 
Teeple,  16  Ind.  37;  Simpson  v.  Moore, 
5  Lea,  372;  Reedy  v.  Brunner,  60  Ga. 
107;  Grissler  v.  Powers,  81  N.  Y.  57; 
S.  C,  87  Am.  R.  475;  Callanan  v. 
Shaw,  24  Iowa,  441 ;  Helfner  v.  Daw- 
son, 63  111.  403;  Plant  v.  Vogelin,  30 
Ala.  160;  Vanderpoel  v.  Brake,  28 
Ind.  130;  Morrison  v.  Weaver,  16  Ind. 
344;  Powers  v.  Talbot,  11  Ind.  1; 
Wells  V.  Lewis,  4  Met.  (Ky.)  269; 
Brown  v.  Wright,  17  Ark.  9;  Rose  v. 
Ilarley,  89  Ind.  77;  Cloud  v.  Wliiting, 
38  Ala.  57;  McCabe  v.  Raney,  32  Ind. 
309;  Bates  v.  Lc  Clair,  49  Vt.  229; 
Stutsman  v.  Thomas,  39  Ind.  384; 
Tobeyv.  Ciupman,  13  Allen,  133. 


1122  The  Law  OF  Estoppel. 

be  good,  such  party  is  bound  to  know  that  lie  will  bo  understood 
as  speaking  intelligently  of  a  contract  with  which  he  is  familiar, 
and  lie  cannot  afterwards  be  permitted  to  claim  that  it  is  invalid, 
by  reat^on  of  a  defense  of  which  he  was  ignorant  at  the  time,  or 
standing  by  in  silence  Avhen  it  is  transferred  for  a  consideration, 
is  an  estoppel  injxds  against  a  debtor.'  This  is  upon  the  broad 
principle,  that  whenevei' one  of  two  innocent  persons  must  suffer 
hy  the  acts  of  a  third,  he  who  has  enabled  such  third  person  to 
occasion  the  loss,  must  sustain  it.  This  rule  is  based  on  a  sound 
legal  principle,  and  commends  itself  to  the  good  sense  of  ev'ory 
intelligent  person,  Avhich  is  an  axiom  of  the  law  that  is  too  well 
settled  to  be  rpiestioned  at  this  late  day. 

§  998.  A  person  to  whose  order  a  bill  or  note  is  made  paya- 
ble, is  generally  vested  with  the  right  to  transfer  the  same  by 
indorsement,  and  the  maker  or  acceptor  cannot  dispute  the  power 
of  (he  payee  to  indorse  and  transfer  the  instrument.  The  mak- 
ing or  accepting  of  it  is  an  assertion  to  all  the  woj'ld  of  the  com- 
petency of  the  payee  to  uegotiate  and  transfer  the  psper,  and 
they  are  estopped  from  afterwards  gainsaying  the  assertion  so 
made.  One  who  transfers  a  negotiable  instrument  by  delivery, 
or  by  indorsement,  impliedly  guarantees  that  it  is  genuine,  and 
that  he  has  title  to  it.''  Thus,  where  one  of  the  members  of  a 
lirm  drew  a  bill  payable  to  the  order  of  a  third  party,  paj'able 
ten    days   after   sight,  the   bill    was  delivered   with  the  forged 

>  Watson  V.  McLaren,  19  Wend.  "Wheeler,  14  Wis.  281;  Marr  v.  How- 
557;  Petrie  v.  Feeter.  21  Wend.  172;  land,  20  Wis.  282;  Reedy  v.  Bruinier, 
Drake  v.  Foster,  28  Ala.  649;  Plant  v.  60  Ga.  107;  Buckuer  v.  Smith,  1  Wash. 
Yogejin,30Ala.  160;  Cloud  v.  Whiting,  299;  Woodson  v.  Burnett,  2  II.  &  M. 
38  Ala.  57;  Preston  v.  Manu,  25  Conn.  80;  Mayo  v.  Giles,  1  Munf.  533;  Plum- 
118;  Rose  v.  Teeple,  16  Ind.  37;  mer  v.  Bank,  90  Ind.  386. 
Wright  V.  Allen,  16  Ind.  284;  Hoomes  «  Congdon  v.  Pearce,  43  Md.  83; 
V.  Smock,  1  Wash.  389;  Morrison  v.  Allen  v.  Clark,  49  Vt.  390;  McGregor 
Weaver,  16  Ind.  344;  Vanderpool  v.  v.  Rhodes,  36  E.  L.  &  E.  144;  Lam- 
Brake,  28  Ind.  130;  Smith  v.  Stone,  bert  v.  Oakes,  1  Ld.  Raymd.  444; 
17  B.  Mon.  168;  Power  v.  Pinkerton,  Critchlow  v.  Parry,  3  Campb.  183; 
1  E.  I).  Smitli,  30;  Crout  v.  De  Wolf,  Lambert  v.  Pack,  1  Salk.  127;  Erwin 
1  R.  I.  393;  Parshall  v.  Laniaroux,  37  v.  Downs,  15  N.  Y.  576;  Murray  v. 
Barb.  189;  Davis  v.  Thomas,  5  Leigh,  .Judah,  6  Cow.  484;  Morrison  v.  Cur- 
1;  Firman  v.  Blood,  2  Kas.  496;  Tylee  rie,  4  Duer,  79;  Herrick  v.  Whitney, 
V.  Yates,  3  Barb.  222;  Lee  v.  Kirk-  15  Johns.  240. 
Patrick,    17   N.  J.  Eq.  264;   Cary   v. 


Unsealed  Instruments.  1123 

indorsement  of  the  payee,  and  tliat  of  a  second  indorser  thereon, 
to  a  bank  in  L'tiea,  whicli  discounted  the  bill,  indorsed  and  sent 
it  forward  for  collection.  The  drawee,  after  having  accepted 
and  paid  the  bill,  discovered  it  was  a  forgery,  brought  an  action 
against  the  bank,  to  whom  he  had  made  the  payment,  to  recover 
back  the  amount  paid  ;  he  was  lield  to  be  estopped,  because  the 
drawers  delivering  the  bill,  with  the  name  of  the  payee  indorsed 
upon  it,  affirmed  that  the  indorsement  was  genuine,  and  that  it 
might  be  negotiated  by  delivery,  and  because  such  a  bill,  when 
transferred  by  the  maker,  indorsed  in  this  manner,  is  in  effect 
payable  to  bearer.  So,  if  a  party  whose  signature  has  been 
forged,  or  placed  on  a  note  without  his  authority,  promises  to 
pay  it,  or  has  led  a  hona  fide  holder  to  believe  that  the  signature 
is  genuine,  he  adopts  the  signature  as  his  own,  and  is  estopped 
from  pleading  that  as  a  forgery.'  Or,  if  a  party  accepts  a  convey- 
ance of  property  as  indemnity  against  promissory  notes,  on  which 
his  name  has  been  forged,  he  thereby  adopts  and  ratifies  the 
debt ;  his  liability  being  so  fixed,  he  is  estopped  from  any  relief 
in  equity  against  the  notes,  nor  can  the  fact  of  his  tiling  a  bill 
afterwards,  repudiating  the  debts  on  account  of  the  forgery, 
affect  the  validity  of  the  conveyance.^ 

§  999.  Although  an  accommodation  note  is  invalid  in  the 
hands  of  the  person  for  whose  benefit  it  was  made,  still,  if  it  is 
transferred  as  business  paper,  at  a  usurious  discount,  to  a  hona 
fide  purchaser,  the  payee  is  estopped  from  setting  up  usury  as  a 
defense  against  his  liability  on  the  note.^ 

§  1000.  The  principle  "  that  where  one  of  two  innocent 
persons  must  be  the  loser  by  the  deceit  or  fraud  of  another,  the 
loss  must  fall  on  him  who  employs  and  puts  trust  and  confidence 
in  the  deceiver,  and  not  on  the  other,"  is  based  upon  the  ground 

1  Bankv.  Keen,  53  Me.  103;  Livings  Coggiil  v.  Bank,  1  N.  Y.  113;  Erwin 

V.    Wiler,  32   111.  357;   Wilkinson  v.  v.  Downs,  15  N.  Y.  576;  Prescott  v. 

Stoney,  1   J.  &   S.  509;   McKenzie   v.  Calvcily,  7  Gray,  217. 

Liueu   Co.,    L.    R.    6   App.   Cas.   82;  ^  Jones  v.  Hamlet,  2  Sneed,  256. 

Hogg   V.   Skeeu,   18   C.  B.  N.  S.  426;  =*  Snyder  v.  Vandoren,  46  AVis.  602; 

Beenian   v.  Duck,  11    M.  &   W.  251;  Fleischman  v.  Stern,  24  Hun,  265;  S. 

Jones  V.  Handet,  2  Sneed,  256;   Wcl-  C,  61  How.  P.  124;  Jackson  v.  Fassitt. 

lingtou   V.    Jackson,    121   Mass.    157;  33   Barb.  645;  Housum  v.  Rogers,  40 

Remsou  v    Groves,   41    N.    Y.    471;  Pa.  St.  190. 


1124  The  Laav  of  Estoppel. 

that,  "  seeing  that  somebody  must  be  a  loser  by  the  deceit,  it  is 
just  and  reasonable,  that  he  who  employs  and  puts  trust  and  con- 
fidence in  the  deceiver,  should  be  a  loser  rather  than  a  stranger.'" 
Thus,  where  one  whose  name  appeai-s  upon  the  note,  as  indorser, 
adopts  the  same  before  maturity,  and,  by  such  adoption,  assists 
the  negotiation  thereof,  he  is  estopped  from  setting  up,  as  a  de- 
fense to  an  action  against  him  by  a  bona  fide  holder  of  the  note, 
that  the  indorsement  is  a  forgery.'^  Thus  a  party  was  requested 
to  sign  a  note  as  surety,  but  refused  unless  another  person  named 
would  execute  the  same.  The  principal  thereupon  forged 
the  signature  of  the  other  person,  whereupon  the  person  asked 
was  induced  to  sign  the  note.  The  princij)al  subsequently 
negotiated  the  note  to  an  innocent  party,  without  notice  of  the 
fraud.  The  fact  of  the  forgei-y  and  fraud  could  not  release  the 
surety  who  signed  the  note  from  liability.'  The  principle  may 
be  further  illustrated  by  the  following  case:  When  a  surety 
signs  a  note  and  places  it  in  the  hands  of  the  principal,  with  the 
agreement  that  other  persons  should  sign  it  as  sureties,  and  the 
note  would  not  be  delivered  until  thus  signed,  but  the  other 
signatures  were  not  obtained,  aiid  the  note  was  delivered  to  the 
payee  without  notice  of  the  agreement,  the  surety  could  ijot  set 
up  the  fi-aud  practiced  upon  him  by  his  principal  against  the 
innocent  payee. 

§  1001.  AV^here  the  maker,  indorser,  drawer,  or  acceptor 
of  negotiable  paper  represents  the  same  to  have  been  made, 
indorsed,  or  accepted  for  value,  and  the  same  is  purchased 
or  taken  on  the  strength  uf  those  repiesentations,  he  is  estopped 
from  showing  the  contrary.*     The  rights  of  the  indorsee  thereon 

'  -^lera  v.  Nichols.  1  Salk.  289;  Lick-  59  111.  364;  Wiley  v.  IMoore,  17  S.  &  R. 

barrow  v.  Msison,  2  T.  R.  70;   Mtiuf  488;  Kn.ippv.  Multby,  13  Wend.  587; 

Co.  V.  Brooks.   51   Me.  506;   Selser  v.  Boarduian   v.    Grove,    1  Stew.   (.\la.) 

Brock,    3    Ohio    St.    302;   Stouer    v.  517;  State  v.  Dean,  40  Mo.  464;  Bank 

Millikeu,    85    111.    218;    Turnbull    v.  v.  Kortright,  22  Wend.  348;- Sthal   v. 

Beyer,   40    N.  Y.  450;    Robinson    v.  Berger,   10   S.  &  R.   170;   Sigfield   v. 

Yarrow,  7  Taunt.  455;  Bank  v.  Bank,  Sevan,  6  S.  &  R.  308;  Bank  v.  Curry, 

1  Hill,  287;  Lambert  v.  Pack,  1  Salk.  2  Dana,  142;  Texira  v.  Evans,  1  Anst. 

137.  229. 

2  Woodrufl  V.  Munroe,  33  Md.  140.  Mknedict  v.    Caffe,    5  Ducr,   226; 

3  Stoner  v.  Millikcu,  85  111.  218;  Bobbins  v.  Richardson,  2  Bosw.  248; 
Stern  v.  People,  102  111.  540;  Ward  v.  Williams  v.  Holmes,  1  Peuuypacker, 
Y^oung,  21  111.  223;  Bartlett  V.  Board,  441;    Lynch   v.    Kennedy,   34  N.  Y. 


Unsealed  Instkuments, 


1125 


are  the  same  against  the  parties  so  representing  it,  as  if  it  had 
been  in  fact  business  paper.'  AVhen  an  indorser  of  a  note  com- 
mits it  to  the  maker  with  the  date  in  bhmk,  the  note  carries  on 
the  face  of  it,  an  implied  authority  to  the  maker  to  fill  up  the 
blank ;  as  between  the  indorser  and  third  persons,  the  maker, 
under  such  circumstances,  must  be  deemed  to  be  the  agent  of  the 
indorser,  and  as  acting  under  his  authority  and  with  his  approba- 
tion. In  like  manner,  where  a  person  indorses  his  name  upon  a 
piece  of  blank  paper,  and  delivers  it  to  another  for  the  purpose 
of  giving  him  a  credit,  the  latter  is  authorized  to  write  on  the 
other  side  a  promissory  note  payable  to  the  order  of  the  indorser.* 
Such  a  blank  indorsement  is,  in  effect  and  intention,  a  letter  of 
credit,  and  being  made  with  the  intent  that  a  promissory  note 
shall  be  written  on  the  other  side  of  it,  it  does  not  lie  with  the 
indorser  to  say  that  he  did  not  indorse  the  note.  A  party  who 
makes  a  blank  acceptance,  or  signs  his  name  on  a  blank  paper  and 
delivers  it  to  another  person,  to  be  over  written  with  a  note, 
gives  an  implied  authority  to  fill  up  the  instrument,  and  he 
is  liable  thereon  to  the  party  receiving  it  honestly  and  for  value, 
though  filled  up  for  a  larger  amourit  than  was  actually  author- 
ized, and  in   a  different  manner.^     The  vendor  of  a  promissory 


151;  Powers  v.  Talbot,  11  Ind.  1; 
Dean  v.  Savage,  28  Coun.  359;  Bank 
V.  Buffiiigton,  98  Muss.  498;  Rose  v. 
Wallace,  11  Ind.  112;  Forsyth  v.  Day, 
40  Me.  176;  Power  v.  Pinkertou,  1  E. 
D.  Smilh,  30;  Sloane  v.  Richmond,  G 
Blackf.  175;  Fort  v.  Meachem,  Riley 
(S.  C.)  248;  Overton  v.  Bolton,  9 
Heisk.  763;  Charles  v.  Dennis,  42 
Wis.  56;  Eaton  v.  ]\IcMabon,  42  Wis. 
484. 

'  Burrell  v.  Degroot,  5  Duer,  379; 
Chamberlain  v.  Towusend,  20  Barb. 
611;  Bank  v.  Jerome,  18  Conn.  450. 

=  Redlich  V.  Doll,  54  N.  Y.  234; 
Kitchen  v.  Place,  41  Barb.  465;  Bank 
V.  Woodworlh,  18  Johns.  314;  Griggs 
V.  How,  31  Barb.  100;  Garrard  v. 
Iladden,  67  Pu.  St.  388;  Yocum  v. 
Smith,  63  111.  821:  Ramboe  v.  Eddy, 
31  Iowa,  440;  Young  v.  Grote,  4  Bing. 
253;  Milchell  v.  Colson,  7  Cow.  336; 


Violet  V.  Patton,  5  Cranch,  142;  Rus- 
sell V.  Langstaff,  2  Dong.  514;  Van- 
duser  v.  How,  2-1  N.  Y.  521 ;  Ingham 
V.  Primrose,  7  C.  B.  82;  Fullerlon  v. 
Sturgis,  4  Ohio  St.  429;  Putnam  v. 
Sullivan,  4  Mass.  45;  Simpson  v. 
Board,  74  Pa.  St.  351;  Roberts  v. 
Tucker,  16  Q.  B.  560;  Halifax  v. 
Wheelright,  L.  R.  10  Excbq.  183; 
Horstmau  v.  Henshaw,  11  How.  177; 
Fort  V.  Meacham,  3  Hill  (S.  C.)  227; 
Burgess  v.  Bank,  4  Bush,  600;  Vere 
V.  Lewis,  3  T.  R.  182;  Minet  v.  Gib- 
son, 3  T.  R.  481 ;  Cooper  v.  Meyer,  10 
B.  &  C.  468;  Overton  v.  Mathews,  35 
Ark.  146;  S.  C,  37  Am.  R.  9. 

3  State  v.  Yoiaig,  23  Minn.  551; 
Frazier  v.  Ganis,  58  Teun.  92;  Dears- 
doff  V.  Foresman,  24  Ind.  481 ;  U.  S. 
V.  Nelson,  2  Brock.  64;  Byers  v.  Mc- 
Lannahan,  6  G.  &  J.  250;  McKee  v. 
Hicks,  2  Dev.  379;  Ay  res  v.  Harness, 


1126 


The   Law  of  Estoppel. 


note  who  transfers  it  by  indorsement,  inipliedly  warrants  that  the 
signatures  of  the  prior  parties,  whose  names  appear  thereon,  are 
genuine,  notwithstanding  the  indorsement  is  expressed  to.be 
without  recourse  to  liim.'  And  tliis  is  not  afifected  by  the  fact 
that  the  indorsee  may  know  that  one  of  the  prior  parties  is  in 
fact  incompetent. 

§  1002.  Where  a  negotial)le  instrument,  with  the  genuine  sig- 
nature of  a  prior  party,  comes  into  the  hands  of  a  honajide  liolder 
for  vakie,  before  maturity,  the  presumption  is  in  favor  of  its 
validity  ;  and  if  such  jjarty  seeks  to  escape  liability,  on  the  ground 
that  it  was  not  voluntarily  executed,  the  burden  of  sliowing  that 
fact  rests  upon  him,  and  also  to  show  that  he  was  without  negli- 
gence in  the  premises.  And  the  same  principle  applies  where 
the  defense  is  that  blanks  in  a  printed  form  were  filled,  without 
authority,  subsequent  to  the  delivery.  The  signing  and  deliver}^ 
of  a  printed  form,  with  blanks  which,  when  tilled  up  in  accord- 
ance with  the  tenor  and  apparent  purpose  of  the  paper,  makes  it 
a  negotiable  promissory  note,  is  such  carelessness  in  the  signer  as 
will  estop  liim  from  denying  the  autliority  for  filling  the  blanks, 
ns  against  an  innocent  holder,  before  maturity  and  for  value.* 


1  OLio,  368;  Kortrigbt  v.  Bank,  20 
Wend.  91;  Bank  v.  Pennick,  5  Mon. 
m-  Bank  v.  Curry,  2  Dana,  142; 
Moody  V.  Tlirekold,  13  Ga.  55;  Scbultz 
V.  Astk-y,  2  Bing.  N.  C.  544;  Armfield 
V.  Armport,  27  L.  T.  Excliq.  42; 
Mather  v.  Madeslone,  IS  C.  B.  273; 
Russell  V.  LangstalT,  2  Doug,  514;  Col- 
lis  V.  Emet,  1  H.  Black.  313;  Mouu- 
tague  V.  Perkins,  17  Jur.  557;  S.  C, 
22  E.  L.  &  E.  51G;  Ciuchly  v.  Clar- 
ence, 2  M.  <fcS.  90;  Mitchell  V.  Culver, 
7  Cow.  330;  AVaid  v.  Allen,  2  Met. 
53;  Putnam  v.  Sullivan,  4  Mass.  45; 
Swan,  in  re,  7  C.  B.  (N.  S.)  400;  U.  S. 
V.  Xelson,  2  Brock.  64;  Snyder  v. 
Vandoren,  46  Wis.  602  ;  Griggs  v. 
Howe,  31  Barb.  100  ;  Van  Duzen  v. 
Howe,  21  N.  Y.  531;  Young  v.  Ward, 
21  111.  223;  Goodman  v.  Simons,  20 
How.  343. 

'  Dumont  v.  William,  18  Obio.  515; 


Buxten  v.  Durin,  29  Me.  434;  Straver 
V.  Ebli,  16  Johns.  201;  Ellis  v.  Wild, 
6  Mass.  321;  Merriam  v.  Wolcott,  3 
Allen,  528;  Aldricb  v.  Jackson,  5  R. 
I.  218;  Terry  v.  Bissell,  26  Conn.  23; 
Thrall  v.  Newell,  19  Vt.  202;  Erwin 
V.  Downs,  15  N.  Y.  575;  Fleckner  v. 
Bank,  8  Wbeat.  338;  Tome  v.  R.  R. 
Co.,  38  Md.  36;  Turnbull  v.  Beyer.  40 
N.  Y.  456;  Robinson  v.  Yarrow,  7 
Taunt.  455;  Bank  v.  Bank,  1  Hill, 
287;  Lambert  v.  Pack,  1  Salk.  127. 

«  Sellers  v.  Brock,  3  Ohio  St.  302; 
McKesson  v.  Stanberry,  3  Ohio  St. 
158;  Foster  v.  ^McKinnon,  38  L.  J. 
(N.  S.)  310;  Putnam  v.  Sullivan.  4 
Mass.  45;  Gibl)S  v.  Linbury,  22Mich. 
470;  Wincbcllv.  Crider,  29  Ohio  St. 
480;  Ross  v.  Dolan,  20  Obio  St. 
473;  Abbott  v.  Rose,  02  Me.  194; 
Cbapman  v.  Rose,  56  N.  Y.  137; 
Douglas  v.   Matling,  29  Iowa.    498; 


Unsealed  Instruments.  1127 

§  1003.  Where  a  negotiable  promissory  note  has  been  protested 
for  non-payment,  and  the  liability  of  the  indorsers  has  been  lixed 
by  notice,  such  indorsers  selling  such  note  without  erasing  their 
indorsement,  will  be  held  responsible  for  the  non-payment  of 
the  same,  though  no  notice  is  given  them  of  non-payment.  Tliey 
are  estopped  by  their  acts  from  controverting  their  liability  upon 
the  note.'  A  party  who  purchases  a  promissory  note  after  it 
becomes  due,  through  the  activity  and  procurement  of  the 
indorsers,  who  induced  him  to  buy  without  disclosing  that  they 
are  discharged  for  want  of  notice  ;  their  silence  is  equivalent  to 
an  affirmntion  that  they  are  still  liable,  and  they  cannot  set  up 
any  want  of  notice  as  a  defense  to  an  action  on  the  note.''  A 
party  who  binds  himself  to  indemnify  another  for  all  liabilities 
lie  might  incur  for  a  certain  bank,  by  accepting  their  drafts, 
indorsing  their  notes,  or  the  renewals  thereof,  or  otherwise  sends 
notes  to  such  obligee  in  pursuance  of  such  bonds,  which  are 
indorsed  by  the  latter  and  are  negotiated,  and  the  proceeds 
received  and  appropriated  by  the  bank,  while  such  notes  may  not 
be  executed  as  to  be  technically  the  notes  of  the  bank,  yet  tiie 
obligor  is  estojiped  from  setting  up  the  defect  to  defeat  a  suit 
upon  the  bond  or  mortgage  given  to  secure  it.'  Where  the 
holder  of  a  note  agrees  to  relinquish  all  claim  upon  an  indorser 
of  the  note,  if  he  will  secure  other  notes  indorsed  by  him,  and 
pay  the  costs  of  actions  connnenced  upon  sucli  other  notes,  and 
the  indorser  gives  the  security  and  pays  the  costs,  this  will  estop 
the  holder  from  suing  such  indorser  on  the  note.*  An  indorser 
of  a  note  who  waives  a  demand  of  payment  upon  the  maker,  and 

Pbelan  v.  Moss,  67  Pa.  St.  59;  Zim-  Bank,  27  Iowa,  319  ;  Shirts  v.  Over- 
merman  V.  Rote,  75  Pa.  St.  188;  Ham-  jolin,  60  Mo.  365:  Sweetzer  v.  French, 
ilton  V.  Vaught,  34  N.  Y.  187;  Bank  3  Gush.  309  ;  Tucker  v.  Morrill,  1 
V.  Smith,  55  N.  H.  593;  Comstock  v.  Allen,  528;  Powers  v.  Ball,  27  Vt. 
Hanna,  76  111.  530;  Nebeker  v.  Cut-  662;  Griswold  v.  Davis,  31  Vt.  390; 
singer,  48Iud.  436;  Glenn  v.  Porter,  Humphreys  v.  Clark,  27  Conn.  381; 
49ln(l.  500;  Yocum  v.  Smith,  63  111.  Swan  v.  North  British  Co.,  7  H.  & 
321;  Clark  v.  Whittaker.  50  N.  H.  N.  603;  Lickbarrow  v.  Mason,  2  T. 
474;   Clark  v.    Pea.se,  41    N.  H.  414;  R.  70. 

Doe  V.  Burnuam,  31   N.  H.  431;  Per-  '  St.  John  v.  Roberts,  31  N.  Y.  441. 

kins  v.  Cb(;llis,  I  N.  H.  254;  Clement  ^  Libby  v.  Pierce,  47  JST.  H.  309. 

V.  Leveret t,  12  N.  11.318;  Emerson  v.  »  McConihe  v.   McClurg,   18  Wis. 

Crocker,  5  N.   H.    159;    Garrard    v.  637. 

Hadden,  67  Pa.   St.  82;  McDonald  v.  "  Eccleston  v.  Ogden,  34  Barb.  444. 


1128  TiiK   Law  of  Es'JorPKL. 

notice  to  hiinsclf  of  non  ))ayinunt,  citlier  wholly  or  for  a  specified 
time  after  uiaturity,  id  csto]>peJ  from  setting  np  in  defense  a 
want  of  deniiu>d  and  notice  at  the  maturity  of  the  note.' 

^  lOOtt.  Where  one  having  the  opportunity  and  the  power  to 
ascertain  with  certainty  the  exact  obligation  he  is  assuming,  yet 
chooses  to  rely  npon  the  statements  of  the  person  with  whom  he 
is  dealing,  and  executes  a  negotiable  instrument,  without  i-eading 
or  examination,  as  against  a  hona  fide  holder  for  vah;e,  he  is 
bound  by  Iris  act,  and  is  estopped  from  claiming  that  he  intended 
to  siijn  an  entirely  different  obligation,  and  that  the  statements 
upon  which  he  relied  were  false.  This  principle,  as  applied  in 
cases  of  severe  hardship,  cannot  be  more  forcibly  illustrated  than 
by  giving  a  copy  of  a  contract  or  agreement  which,  after  signing 
and  delivery,  has  been  transformed  into  a  promissory  note,  viz  : 

This  is  the  contract  or  agreement  as  made  : 

North  East.  April  .3d,  1872.     *  * 

"  Six  months  after  date  1  promise  to  p.<iy  to  J.  li.  Smiili  or  bearer  fifty  dollar^  when  I  sell  by 
order  Two  hundred  and  flfly  dol   ir-  wortli  of  Ilay  and  Harvest  Grinders, 

for   value   reeeived.  with   )egal   interest,  without  appeal,  and   also  without 

defalcation  or  stay  of  execution. 

T.  H.  Brown,  A^ent  for  Hay  &  Harvest  Grinders." 
*  * 

This  is  the  contract  sued  upon,  after  the  portion  between  the 
stars  had  been  cut  off : 

North  East.  April  3d,  1S72. 
"  Six  months  after  date  I  promise  to  pay  to  J.  B.  Smith  or 
order  Two  bundled  and  fifty  doliais 
for  value  received,  with  legal  interest,  without 
defalcation  or  stay  of  execution. 

T.  H.  Brown." 
Endorsed  "  T.  B.  Smith,  without  recourse.' 

It  was  difficult  to  apply  this  doctrine  in  this  class  of  cases, 
but  tlie  difficulty  has  been  overcome,  and  where  the  means  of 
knowledge  of  the  alleged  fraud  is  equally  open  to  both  parties, 
the  law  will  not  interfere  to  protect  the  negligent.  If  the  truth 
or  falsehood  of  the  representation  might  have  been  tested  by 
ordinary  vigilance  and  attention,  it  is  the  party's  own  folly  if  he 
neglects  to  do  so,  and  he  is  remediless.  Were  the  rule  otherwise, 
written  contracts  would  be  of  little  practical  value  over  those 
exi.'^ting  in  parol  only.''     Where  a  man  negligently  signs  a  note 

'  Powerv.  i\lilchell,  7  Wis.  lCl;Day  •  Grig.sby   v.    Nance,    3    Ala.    347; 

V.  Elmore,  4  Wis.  190;  Robinson  v.  Dc-pew  v.  Bank,  1   J.    J.  I\Iaisli.  378; 

Barnett,  18  Fla.  602;  S.  C,  45  Am.  R  Ander.son  v.  Waiiie,  71  111.  20:  Matli- 

24.  cws  V.  Crosby,  56  N.  H.  21 ;  Swannell 


Ujnsealed  Instruments. 


1129 


negotiable  bj  the  law  iiiercliaiit,  be  canuot  defend  against  it  in 
the  band  of  a  honafide  bolder,  and  one  wbo  does  sign  a  note,  with- 
out reading  it,  is  guilt j  of  negligence.'  The  same  principle 
applies  where  a  party  signs  a  deed,  supposing  it  to  be  a  lease, 
witiiout  reading  It.' 

§  1005.  A   party  who   acts  so   negligently  that  be  assists  in 


V.  Watson,  71  111.  456;  Kellogg  v. 
Curtis,  65  Me.  59;  McCormack  v. 
Molburg,  43  Iowa,  561 ;  Homes  v. 
llaille,  71  111.  552;  Bank  v.  Smith,  55 
N.  H.  593;  Shirts  v.  Overjohn,  60  Mo. 
865;  Frederick  v.  Clemens,  60  Mo. 
313;  Putnam  v.  SulUvau,  4  Mass.  45; 
Swan  V.  North.  «fcc.  Co.,  7  H.  &  N. 
603;  S.  C,  3  H.  &  C.  175;  Nebeker  v. 
Cutsinger,  48  Ind.  436;  Ruddell  v. 
Dillmau,  73  Ind.  518;  S.  C,  37  Am. 
R.  15-2;  Fulford  v.  Block,  8  111.  App. 
284;  Williams  v.  Stoll,  79  Ind.  80; 
S.  C,  41  Am.  R.  604;  Leach  v.  Nich- 
ols, 55  111.  273;  Dinsmore  v.  Stimbert, 
12  Neb.  433;  Gulliher  v.  R.  R.,  59 
Iowa,  416;  Zimmerman  v.  Rote,  75 
Pa.  St.  188;  Harvej'  v.  Smith,  55  111. 
224;  Bank  v.  Lanier,  11  Wall.  869; 
Weaver  v.  Borden.  49  N.  Y.  288;  Tay- 
lor v.  Atchison,  54  111.  196;  Putnam  v. 
Sullivan,  4  Mass.  45;  Oris  v.  Gardner, 
105111  436;  Foster  V.  Mackinou,  L.  R. 
4  C.  P.  704;  Mead  v.  Munson,60  111.  50; 
AVhitiiey  v.  Snyder,  9  Lans.  477  ;  Gar- 
lard  V.  tladdam,  67  Pa.  St.  83;  Chap- 
man V.  Rose,  56  N.  Y.  137;  Doug- 
las v.  Matliug.  29  Iowa,  498;  Plielan 
V.  Moss,  67  Pa.  St.  59;  Stone  v.  Milli- 
ken.  85  111.  219;  Ma-key  v.  Peterson, 
29  Minn.  298;  Strong  v.  Livingstone, 
Bill.  App.  436;  Hern  v.  Nichols,  1 
Salk.  289;  Jennings  v.  Gage,  13  111. 
611;  Young  v.  Grote,  4  Biug.  253; 
Yocum  V.  Smith,  63  lU.  821;  Bank  v. 
Steffers,  54  Iowa,  214;  Fisher  v.  Von 
Behien,  70  Ind.  19;  S.  C,  86  xYm.  R 
162;  Ruddell  v.  Thalor,  72  Ind.  533- 
S.  C,  37  Am.  R.  137;  Bank  v.  Weck- 


erly,  67  Ind.  845;  Winchell  v.  Crider, 
29  Ohio  St.  480;  McCoiniack  v.  Mol- 
burg, 43  Iowa,  561 ;  Baldwin  v.  Bar- 
rows, 86  Ind.  352;  Woolen  v.  Whit- 
acre,  73  Ind.  198;  Cornell  v.  Nebeker, 
58  Ind.  425;  Woolen  v.  Ulrich.  64 
Ind.  120;  Noll  v.  Smith,  64  Ir,d.  511; 
Hunter  V.  Bryden,  21  111.  591;  Gava- 
gan  v.  Bryant,  83  111.  376;  Fulton  v. 
Woodman,  54  Miss..  158;  B;iuk  v. 
Fletcher,  44  Iowa,  2.j1;  Dickcison  v. 
Evans,  84  111.  451,  Bell  v.  Byerson, 
11  Iowa,  233;  Rogers  v.  Place.  29 
Ind.  577;  Welter's  Appeal.  103  Pa. 
St.  594;  Quaff  v.  Logue,  61  Iowa, 
704;  Whitcomb  v.  Miller,  90  Ind.  384; 
Nichols  V.  Baker,  75  Me.  334 ;  Ort  v. 
Fowler,  31  Ivans.  478  ;  S.  C,  47  Am. 
R.  501;  Bank  v.  Johns.  23  W.  Va. 
520;  S.  C,  46  Am.  R.  506;  Leonard 
V.  Dougherty,  33  W.  Va.  536. 

1  Baldwin  v.  Barrows,  86  Ind.  352; 
Williams  v.  Stoll,  79  Ind.  80;  S. 
C,  41  Am.  R.  604;  Woolen  v.  Whit- 
acre,  78  Ind.  198;  Ruddell  v.  Thalor, 
72  Ind.  533;  S.  C,  37  Am.  R.  177; 
Cornell  v.  Nebeker,  58  Ind.  425;  Bank 
V.  Weckerly,  67  Ind.  345;  Woolen  v. 
Ulrich,  64  Ind.  120;  Noll  v.  Smith,  64 
Ind.  511;  Ruddell  v.  Dillmau,  73  Ind. 
518;  S.  C,  38  Am.  R.  152;  Fisher  v. 
Von  Behren,  70  Ind.  19;  S.  C,  36  Aia. 
R.  163;  Bank  v.  Steffers,  54  Iowa, 
214. 

-  Gavagau  v.  Bryant,  88  111.  376; 
Dickerson  v.  Evans,  84  111.  457;  Fulton 
v.  Woodman,  54  Miss.  158;  Bank  v. 
Fletcher,  44  Iowa,  253. 


1130  The  Law  of  Estoppel. 

occasioning  the  loss  cannot  recover.'  Tims,  a  person  who  does 
not  lock  np  his  bankbills  and  other  negotiable  securities,  which 
are  consequently  stolen,  is  negligent  as  regards  himself,  and  is 
estopped  from  denying  the  title  of  thot^e  who  have  innocently,  in 
good  faith,  fur  value,  purchased  such  securities;  but  negligence  to 
operate  as  an  estoppel  must  be  the  proximate  cause  of  the  loss." 

§  1006.  The  relation  between  banker  and  customer,  who  pays 
money  into  the  bank,  or  to  whose  credit  money  is  received  there 
on  deposit,  is  the  ordinary  relacion  of  debtor  and  creditor  ;  and 
that  when  the  bank  receives  the  money  as  an  ordinary  deposit  and 
gives  credit  to  the  depositor,  the  money  becomes  the  funds  of  the 
bank,  and  may  be  used  by  it  as  any  other  funds  to  which  it  may 
be  entitled.  It  is  accountable  for  the  deposits  that  it  ma}'  receive 
as  debtor,  and  in  respect  to  ordinary  deposits  there  is  an  implied 
agreement  between  the  bank  and  the  depositor  that  the  checks  of 
the  latter  will  be  honored  to  the  extent  of  the  funds  standing  to 
his  credit.^  There  is  no  question  of  trust,  therefore,  between  the 
parties,  but  their  i-elation  is  purely  a  legal  one  ;  and  if  the  bank 
pays  money  on  a  forged  check,  no  matter  under  what  circum- 
stances of  caution,  or  however  honest  the  belief  in  its  genuineness, 
if  the  depositor  himself  be  free  of  blame,  and  has  done  nothing  to 
mislead  the  bank,  all  the  loss  must  be  borne  by  the  bank,  for  it 
acts  at  its  peril,  and  pays  out  its  own  funds,  and  not  those  of  the 
depositor.  It  is  in  view  of  this  relation  of  the  paiues,  and  of 
their  rights  and  ol)ligations,  that  the  principle  is  universally  main- 
tained that  banks  and  bankers  are  bound  to  know  the  signatures 
of  their  customers,  and  that  they  pay  checks  purporting  to  be 
drawn  by  them  at  their  peril.'  No  right  or  title  can  be  legally 
claimed  through  a  forgery  ;  and  the  possession  by  the  bank  of  a 
forged  check,  upon  which  money  has  beenpiiid,  alfords,  of  itself, 
no  ground  for  claim  of  credit  on  account  as  against  the  paity  who?e 

'  Young    V.    Giotc,    4    13ing.    254;  house,  Moo.  &  M.  154;  Whit  more  v. 

Ingham  v.  Piimiose,  7  C.  B.  (N.   S.)  Wilks,  Moo.  &  M.  214. 

82;  6\van,  in    ic,  7  C.  B.  (X.  a.)  400;  "-  Bank  v.  Evans,  5  II.  L.  C.  889. 

Foster   v.    McKinuon,  L.  K.   4  C.  P.  =  Iloiwitz  v.  Eilinger,  31   Md.  493; 

704;   Coles  v.  Bank,  10  A.  &  E.  48/;  Foley  v.  Hill,  2  Ci.  &  Fin.  28;  Thorap- 

Grunt     V.    Vaughn,    3    Burr.    1510;  son  v.  Riggs,    5  Wall.    063;    Bank  V. 

Marsh   v.    Keating,    2  CI.   &  F.  350;  Millard,  10  Wall.  152. 

Davis  V.  Bank,  2  Bing.  409;  Barber  v.  <  Bank  v.  Bank,  30  Md.  11. 
Gm-ell.  3  Esp   GO;  Bradlc}-  v.  Water- 


Unsealed  Instruments,  1131 

name  has  been  forged.  But  while  these  are  the  strict  and  neces- 
sary rules  as  against  banks  and  bankers,  their  operation  may  be 
waived  by  the  acts  and  conduct  of  the  parties  for  whose  benefit 
and  protection  they  are  intended  to  be  enforced.  If,  for  instance, 
a  customer  of  a  bank  having  a  deposit  account,  and  who  is  in  the 
habit  of  drawing  checks  npon  the  account,  should,  by  words  or 
acts,  cause  the  bank  (the  latter  acting  upon  such  reasonable 
grounds  as  prudent  business  men  generally  act)  to  make  payment 
on  a  forged  check,  such  customer  would  not  be  allowed,  as  against 
the  bank,  to  set  up  the  forgery  that  he,  by  his  conduct,  had 
induced  the  bank  to  act  on  as  a  genuine  check.' 

§  1007.  Where  a  party  sees  an  obligation  with  his  name  signed 
to  it  without  liis  authority  and  consent,  yet  tells  the  obligee,  that 
the  signature  is  his,  he  is  bound  by  it,  and  will  be  estopped  to  say 
that  it  is  not  his  act  and  deed.     Reason  and  the  policy  of  the  law 
forbid  that  a  party,  who  is  apparently  an  obligor,  should  assert 
that  he  is  such,  and  bound  by  his  obligation  and  afterward  escape 
the  debt  by  plea  of  non  estfactwn."    fSo,  where  a  promissory  note 
was  on  its  face,  made  payjible  to  A.,  the  maker  of  the  note  was 
estopped  to  deny  that  the  note  was  made  to  A.'    AVhere  a  person 
whose  signature  is  forged  to  a  promissory'  note,  upon  being  asked 
by  one,  who  afterwards  purchases  it,'  if  he  shall  purchase,  and 
tells  him  that  he  may,  or  where,  after  purchase,  when  the  note 
falls  due,  he  promises  to  settle  it,  he  cannot  afterwards  excuse 
himself  from  paying  it,  on   the  ground  that  it  is  a  forgeiy.     If  a 
jjerson  whose  signature  is  forged,  treats  the  forged  notes  as  valid, 
and  thereby  leads  the  community  to  believe  that  the  forger  has 
authority  to   draw  notes  in   his  name,  he  will  be  bound  to  pay 
siuiilar  notes,  purchased   by  one  who  is  deceived  by  his  conduct. 
Where  the  person,  whose  signature  is  forged,  promises  the  forger 
to  pay  the  note,  this  amounts  to  a  ratification  of  the  signature  and 
binds  him.''     The  guarantor  of  the  collection  of  a  note  or  debt,  if 

'  Hardy  v.  Bank,  51  Md.  563.  ^  Rogers  v.  Place,  29  Ind.  577. 

«  Riidd    V.    Mathews,    79  Ky.   479;  *  Hefner  v.   Vandolali,  G2   111.  483; 

S.  C.  43   Am.    R.    381;    Forsyth  v.  Wellington  v.  .lacksou,  131  Mass.  157; 

Banla,  5  Bush,  47;  Hefner  v.  Dawson,  Bank  v.  Crafts,  4  Alien,  447;  Bartlett 

63  111.  403;   Bank   v.    Keene,  53  Me.  v.  Tucker,    104  Mass.  336;   Crout  v. 

103;   Smith   v.   Newton,   38.111.   335;  De  Wolf,  1  R.  I.  393;   Bank  v.  Keen, 

Kingsley  v.   Vernon,   4  Sandf.    361;  53  Me.  103  ;  McCormack  v.  Moburg, 

Hefner  v.  Vandolah,  63  Hi.  483.  43  Iowa,  561. 


1182 


The  Law   of  Estoppel. 


he  consents  to  a  delay  in  the  prosecution  of  the  principal  debtor, 
on  his  faihn-e  to  pay  at  the  maturity  of  the  debt,  will  be  estopped 
from  setting  up  such  delay  as  a  defense  to  a  suit  upon  the 
guaranty.' 

§  1008.  An  acceptor  of  a  bill  is  not  allowed  to  allege  that  the 
signature  of  the  drawer  is  a  forgery  ;  by  accepting  it  he  accredits 
the  bill  and  gives  it  currency  in  the  market.^  There  is  no  ground 
of  principle  upon  which  he  can  raise  such  a  defense.  Pie  knows, 
or  is  presumed  to  know,  the  handwriting  of  the  drawer,  and  his 
acceptance  is  a  contract  entered  into  upon  the  basis  of  facts  that  are 
peculiarly  within  his  knowledge.  So,  whei'e  a  party  taking  a  bill 
inquires  beforehand  if  the  acceptance  is  genuine,  and  he  answers 
that  it  is,  he  is  estopped  from  afterwards  denying  his  signature, 
in  an  action  brought  by  the  purchaser,  who  acted  on  the  faith  of 
his  representation."  Where  an  acceptance  is  not  regarded  as  a 
contract  to  pay  according  to  the  tenor  of  the  bill,  it  is  sufficient 
to  estop  him  from  denying  the  signature  of  the  drawer  in  an  action 
brought  b}^  the  holder,  who  took  it  after  it  had  been  accepted. 
The  acceptance  being  made  after  sight  of  the  bill  admits  the 
drawer's  signature.  The  acceptor  is  estopped  from  disputing  the 
drawer  s  ability,  or,  if  after  the  sight  of  the  bill,  his  handwriting.* 
The  indorsee,  that   of  disputing  that  of  anj''   antecedent  party  to 


•  Barbell  v.  Gingcll,  3  E?p.  60,  Mor- 
ris V.  Bethel,  L.  B.  5  C.  P.  47;  Da}'  v. 
Elmore.  4  Wis.  190. 

2  Poithouse  V.  Pavher,  1  Camp.  83; 
Price  V.  Bruuatte,  1  Biiig.  N.  C.  435; 
Jenys  v.  Fowler,  2  Stra.  946;  Bank 
V.  Bank,  10  Wheat.  383;  Cooper  v. 
Meyer,  10  B.  &  C.  468;  Ashpilel  v. 
Bryan,  5  B.  &  S.  723;  Smilii  v. 
Chester,  1  T.  II.  654;  Sanderson  v. 
Colman,  4  M.  &  G.  2109;  Beeman  v. 
Duck,  11  M.  &.  W.  251;  Smith  v. 
Marsack,  6  C.  B.  486;  Halifax  v.  Lyie, 
3  E.xchq.  446;  Pitt  v.  Chappelow,  8  U. 
&  W.  616;  Dmyton  v.  Dale,  2D.  &  C. 
293;  Lambert  v.  Pack,  1  Salk.  127; 
Critehlow  v.  Parry.  2  Camp.  182; 
Clark,  in  re.  3  Bro.'c.  C.  238;  Tliiek- 
iicsse  V.  Bromilow,  2  Cr.  &  J.  425;  Ar- 
mani V.   Castrique,  13  M.  &  W.  443; 


JIcGregorv.  Hodges,  6  E.  &.  B.  266; 
Burchtieid  v.  Moore.  23  L.  J.  Q.  B. 
261;  Powers  v.  Pinkerton,  1  E.  D. 
Smith,  30;  Levy  v.  Bank,  4  Dall.  234; 
Price  V.  Keal,  3  Burr.  1354;  Smith  v. 
Mercer,  1  Marsh.  453;  Wilkmson  v. 
Lutwidge,  1  Stra.  618. 

'■'  Leach  v.  Buchanan,  4  Esp.  226; 
Cooper  V.  Le  Blanc,  2  Stra.  1051; 
Wilkinson  v.  Lutwidge,  1  Stra.  G18. 

4  Drayton  v.  Dale,  2  B.  &  C.  293; 
Hardy  v.  Waters,  38  Me.  450;  Burrill 
V.  Smith,  7  Pick.  291;  Hallifa.x  v. 
Lyle,  3  Exch(i.  446;  Nightengale  v. 
Withington,  15  Mass.  272;  Braith- 
waiie  V.  Gardner,  8  Q.  B.  473;  Pitt  v. 
Chappelow,  8  M.  &  W.  624;  Bank  v. 
Bank.  10  Wheat.  333;  Levy  v.  Bank, 
1  Binu.  27. 


Unsealed  Instruments.  1133 

the  bill.'  Where  a  bill  was  drawn  and  indorsed  in  the  name  of  a 
fictitious  person,  the  acceptor  is  estopped  from  questioning  his 
existence  or  signature,  either  as  maker  or  indorser  ;  for  the  reason 
that  the  maker  being  imaginary,  the  admission  of  his  handwriting 
for  one  purpose  necessarily  admits  it  for  another.''  The  acceptor 
for  honor  of  a  bill  of  exchange,  is  estopped  to  deny  its  genuine- 
ness in  a  suit  by  the  holder,  who  discounted  it  on  the  faith  of  the 
acceptance,  or  from  disputing  that  there  is  such  a  person  as  the 
payee  named  therein.^  It  also  estops  the  denial  of  the  authority  of 
the  agent  who  signed  the  instrument  by  procuration.*  The  estop- 
pel does  not  extend  beyond  the  genuineness  of  the  drawer's 
signature.  The  acceptor  is  not  estopped  from  showing  that  the 
bodj^  of  the  bill  has  been  altered,^  and  may  deny  the  handwriting 
of  the  indorser,  unless  he  has  been  guilty  of  laches,"  even  where 
the  bill  purports  to  be  drawn  by  the  same  person.'  An  acceptor 
cannot  plead  that  the  drawer  is  a  married  woman,  and  he  is  estop- 
ped from  denying  or  disputing  her  competency.*  An  acceptor  or 
indorser  cannot  deny  that  the  instrument  was  duly  drawn  or 
indorsed  as  against  a  subsequent  purchaser  for  value,  on  the  faith 
of  the  signature,  and  is  consequently  entitled  to  rely  on  it  as  an 
equitable  if  not  legal  estoppel.^  If  consignees  act  upon  the  faith 
of  a  bill  of  lading,  (as  by  making  advances,)  the  ship  owners  are 


'  Sanderson  v.  Coltman,  8  M.  &  W.  *  Pitt   v.    Chappelow,    8  M.  &  W. 

209;  Sclmltz  v.  Astley,  2  Bing.  K  C.  624;  Levy  v.  Bank,  1  Binn.  27;   Bank 

544;   Beeuian   v.  Duck,  11    M.  &   W.  v.    Bank,    10   Wheat.    383;   Smith  v. 

251.  Marsack,  6  C.  B.  486. 

-  Pitt  V.  Chappelow,  8  M.  &  W.  624;  *  Bank  v.  Bank,  3  N.  Y.  230. 

Braithwaiie    v.    Gardiner,    8    Q.    B.  «  Bank  v.  Bank,  1   Hill,  287;  Bank 

473;  Beenian  v.   Duck,  11  M.   &  W.  v.  Bank,  17  Mass.  44. 

251;   Jennys   v.    Fowler,    2  Str.    946;  ''  Robinson    v.    Yarrow,    7   Taunt. 

Lambert  V.  Pack,  Salk.  127;  Critchlow  555;   Beniau   v.    Duck,  11  M.   &  W. 

V.    Parry,    2   Camp.  182;    Armani   v.  251;    Garland    v.    Jacomb,    L.    R.    8 

Castriquc,    13    M.    &    W.    413;    Mc-  Exchq.  21G. 

Greggor    v.    Rose,    6   E.    &    B.    266;  »  Bank   v.  Lanman,  19   N.  H.  477 

Halifax  V.  Lyle,  3  Exchq.  446;  Gibson  Woodward   v.    Harbin,    1    Ala.    104; 

V.  Minet,  1  H.  Bla.   5()9  ;  Ashpifel  v.  Smith  v.  Marsack,  6  C.  B.  480;  Taylor 

Bryan,  3  B.  &  S.  474;  Depew  V.  Bank,  v.    Crocker,    4    Esp.    187;    Jones  v. 

1  J.  J.  Marsh.  378;  Cooper  v.  Meyer.  Darch,  4  Price,  309. 

10  B.  &  C.  468.                                  "  9  McGregor  v.  Rhodes.  6   El.  &   B. 

3  Wheelerv.  Webster,  IE.  D.Smith,  266;   Lambert   v.  Oaks,  1   Ld.  Rymd. 

1;  Phillips  V.  Imlhurn,  18  C.   B.   (N.  44;!;  Drayton  v.  ]3ale,  2  B.  &  C.  293; 

S.)  694.  Pitt  V.  Chappelow,  8  M.  &  W.  624. 


1134  The  Law  of  Estoppel. 

estopped  as  against  them  from  denying  the  amount  therein  expres- 
sed, and  are  liable  to  them  for  any  duficienc}'.' 

§  1009.  No  one  who  contracts  expressly  as  principal  or  assumes 
a  position  which  is  at  variance  or  inconsistent  with  the  relation 
of  suretyship,  can  show  that  he  is  surety,  or  claim  any  of  the 
rights  incident  to  that  character.  This  is  equally  true  at  law  and 
at  equity,  and  was  strikingly  illustrated  by  the  case"  in  the 
Supreme  Court  of  the  United  States,  when  the  sealed  writing 
obligatory,  on  which  the  suit  was  brought,  contained  a  recital  that 
the  defendants  were  bound  as  princijwls,  and  not  as  sureties,  which 
estopped  them  from  denying  that  such  was  the  true  nature  of 
their  obligation. 

§  1010.  The  acceptor  of  a  bill  of  exchange  cannot  show  that 
he  has  put  his  name  to  it  without  consideration,  for  the  purpose 
of  placing  himself  in  the  position  of  surety,  for  no  one  can  vary 
the  basis  on  which  he  has  contracted,  after  the  contract  is  made; 
a  defendant  who  has  assumed  the  guise  and  cliaracter  of  a  prin- 
cipal cannot  change  his  position  subsequently  to  the  injury  of 
others  who  have  dealt  with  him  on  that  footing.^  The  defend- 
ant is  bound  to  submit  to  all  the  incidents  and  undergo  all  the 
consequences  of  the  pusition  in  which  he  has  voluntarily  pla('ed 
himself;  one  of  which  is  that  of  being  primarily  and  ultimately 
answerable  notwithstanding  a  temporary  or  final  discharge  of  the 
other  parties  to  the  instrument.  This  same  ])rinciple  applies  to  a 
promissory  )iote  which  the  makers  had  executed,  each  as  prin- 
cipals, and  held  to  preclude  a  defense  based  on  the  ground  that 
the  relation  between  them  was  that  of  principal  and  surety.* 
Even  knowledge  of  the  nature  of  theacceptance  at  the  time  when 
the  bill  is  taken  will  not  vary  its  effect,  nor  preclude  the  holder 
from  ti'eating  the  acceptor  as  a  principal."  lie  who  makes  a  note 
or  accepts  a    bill  for   the  accommodation  of    another,  virtually 

»  Norris  v.  Dock  Co.,  21  Wis.  130;  *  Bank  v.  Wood,  10  Vt.  182;  Bank 

Ellis  V.  Willard,  9  N.  Y.  529;  Meyer  v.  Shailor,  20  Conn.  18. 

V.  Peck,  28   N.    Y.    590;   Rowley   v.  ^  White  v.  Hopkins,  3  W.  &  H.  99; 

Bigelow,  12  Pick.  309.  Lewis  v.   Hauchman,  2  Pa.  St.   410; 

=  Sprigg  V.  Bank,  10  Peters,  257.  Bank   v.  Cunningham.  24  Pick.  270; 

*  Feuton   v.  Pocock,  5   Taunt.  551;  Harrison  v.  Corutald,  3   B.  *.t  A.  36; 

Sprigg  V.  Bank,  14  Peters,  201;   Bank  Bank  v.  Beresford,  G  Dow.  243. 
V.  Walker,  9  S.  &  R.  229. 


Unsealed  Instruments.  1135 

auUiorizes  those  who  take  the  iustruinent  subsequentlj',  to  make 
siich  terms  or  arrangements  with  the  indorsei's,  as  may  be  most 
conducive  to  tljeir  mutnai  interests,  and  cannot  revoke  the 
authority  tlius  given,  to  the  injury  of  others  who  have  acted  upon 
it.  A  defendant  who  contracts  expressly  as  principal,  cannot 
claim  relief  either  at  law  or  equity,  on  the  ground  that  he  is 
merely  a  surety,  and  was  known  to  be  such  when  the  instrument 
was  executed.  The  implication  which  arises  from  making  a  note 
or  accepting  a  bill,  supercedes  the  necessity  for  an  express 
covenant  or  recital,  and  estops  the  maker  or  acceptor  from  plead- 
ing the  collateral  relation  between  himself  and  the  payee,  as  a  bar 
to  an  action  brought  to  enforce  the  instrument;  no  court  can 
depart  from  or  vary  the  meaning  of  a  contract  as  expressed  in 
its  terms,  and  it  is  equally  binding  whether  in  a  court  of  law  or 
equity.* 

§  1011.  A  judpe  who  gives  to  a  bank  an  order  on  the  state 
treasurer,  directing  him  to  pay  such  bank  or  order  on  a  subsequent 
day,  a  certain  sura  *'  in  full  for  his  quarters'  salary  commencing  on 
that  day,"  thereby  clothes  such  bank  with  the  apparent  owner- 
ship of  the  fund,  and  as  against  Tjona  fide  purchasers  of  such 
order  for  value,  is  estopped  from  asserting  that  such  apparent 
ownership  was  not  the  real  ownership,  notwithstanding  such 
order  was  given  without  value,  and  as  a  mere  authority  to' receive 
the  money  for  his  use.^  AVhere  a  party  upon  the  faith  of  a 
promise  by  another,  that  if  the  plaiutiifs  would  suspend  bringing 
an  action  upon  a  second  note  of  the  defendant,  he  would  abide 
by  the  decision  of  the  first  action  upon  a  similar  note  of  the 
defendant,  delayed  bringing  an  action  upon  the  second  note  until 
after  the  decision  of  the  action  upon  the  first  note,  and  until  after 
the  statute  of  limitations  liad  attached,  the  defendant  upon  the 
doctrine  of  equitable  estoppel  or  estoppel  in  jyais^  is  precluded 
from  setting  up  the  statute  of  limitations  as  a  defense.' 

Obtaining  an  extension  of  time  from  the  holder  of  a  note, 

•  Hicatt   V.    Sim]:)son,    8    Ind.    256;  488. 

Jones  V.  Pliclps,  5  iMich.  218;   Harper  2  Bank  v.  Hastings,  15  Wis.  75. 

V.  Pound,  10  Ind.  32;   Addair  v.  Ad-  ^  Brookman  v.  Metcalf,  34  How.  Pr. 

dair,  5  Mich.  204;   Kuiz  v.   Hoitou,  4  429;  S-  C,  4  Rob.  568;  Lamb  v.  Clark, 

Cal.  359:  SpOer  v.  Wliitfleld,  10  N.  J.  5  Pick.  193;  Davis  v.  Dyer,  56  N.  H. 

E.  107;   Hayues  v.  Hay  ward,  41  Mc.  143. 


1136  The.  Law  of  Estoppel. 

estops  the  maker  from  deiij'iiig  sucli  holder's  title.'  So,  a  partial 
payment  made  by  one  of  the  payees  wliich  he  causes  to  be 
indorsed  on  the  note  as  made  by  him,  estops  him  from  repudiating 
the  payment,  and  claim  that  it  was  done  for  another.*  So,  where 
a  party  sells  a  note  or  bond  represented  to  be  secured  by  the  first 
mortiijage,  or  induces  another  to  guarantee  it  as  such,  he  will  be 
estopped  from  subsequently  setting  up  a  lien  as  against  the 
guarantor  and  the  holder  of  the  bond  or"  note.'  So  the  maker  of 
a  note  to  a  husband  and  wife  is  estopped  from  saying  that  ho  was 
indebted  to  the  husband  only."  So,  where  a  payee  of  a  promis- 
sor}^  note  in  response  to  an  inquiry  as  to  whether  he  will  accept 
partial  payments  and  allow  interests  on  them,  answered:  "I 
think  it  will  be  all  right  ;  there  will  be  no  trouble  about  it ;" 
is  estoppel  to  deny  that  he  assented  to  the  allowance  of  interest." 
So  a  note  made  by  one  in  the  name  of  another,  without  authority, 
may  be  made  good  by  ratification,  and  no  new  consideration  is 
needed  to  support  the  ratification.'  Thus  the  promise  by  one  of 
the  makers  after  full  knowledge,  of  an  alteration  in  the  note, 
distinctly  and  unconditionally  made  adopts  the  note  as  his  own  and 
is  bound  to  pay  it.  And  it  is  immaterial  whether  the  alteration  was 
material  or  not.  It  is  a  ratification  of  the  altei'ation.'  So  a  j^romis- 
sory  note  or  contract  wliich  might  have  been  avoided  on  the  ground 
of  duress  in  obtaining  it,  may  be  validated  by  subsequent  acts  of  the 
maker  showing  a  ratification  ;  and  by  subsequent  I'atificatiun  he 
M-ill  be  estopped  from  insisting  on  the  duress  as  a  defense."  So, 
where  a  party  delivers  notes  with  his  name  tluireon  as  maker  fur 
the  price  of  goods  bought  by  him,  he  will  not  be  permitted  to 
deny  that  his  name  was  signed  l)y  himself  or  his  authoritj-." 

§  1012.  An  estoppel  i)i jjaismiij  he  urs^e(\  against  the  defense 
of  usury  as  well  as  against  other  matters  of  defense  which  do  not 
involve  any  idea  of  leiral  or  mi>ral  turpitude.  Thus,  where  a  sale 
of  a  note  is  negotiated  by  an  agent  of  the  maker,  for  the  pur])ose 

1  Conrad   v.   Calk-ry,   22  La.  Ami.  ^  Parker  v.  iloody,  58  Me.  70. 
428.  «  Cravens    v.    Gillilaii,    6;3    M<>.    28; 

2  Tainter  v.   Winter,    5;J   j\Ie.  348;      Bank  v.  Gay,  63  Mo.  3;j. 

Irvine  V.  Adams,  48  Wis.  4G8;   S.  C,  ''  Goodspeed  v.  Cutler,   75  111.  534; 

33  Am.  R.  817.  Evans  v.  Forman,  65  Me.  449. 

3  Green's  Appeal,  97  Pa.  St.  343.  «  Battle  v.  Breniger,  31  Iowa,  139. 

*  Walchner  v.  Sells,  87  Ind.  71.  »  Blodgett  v.  Webster,  24  K  H.  91. 


Unsealed  Instkitments.  1137 

of  raising  money  for  tliem  jointly,  and  the  agent  in  the  sale  of 
the  note  declares  to  the  purchaser  that  it  is  a  valid  business  note, 
the  maker  is  estopped  from  setting  up  the  defense  of  usury.'. 
A  note  was  made  payable  to  the  maker's  own  order,  and  his  certifi- 
cate was  attached  thereto,  stating  that  the  note  was  given  for 
value  and  would  be  paid  when  due.  The  note  was  then  sold  to 
the  plaintiff  for  a  greater  discount  than  the  legal  rate.  In 
an  action  by  the  plaintiff  thereon  the  maker  cannot  set  up  the 
defense  of  usury,  as  that  would  give  him  an  opportunity  to  profit 
by  his  own  deception  practiced  on  the  plaintiff.''  This  estoppel 
is  as  applicable  to  an  indorser  of  an  accommodation  promissory 
note,  who  represents  that  the  note  .  is  valid  business  paper,  as  to 
the  maker  of  the  note.  Where  the  maker  of  a  note  annexes 
thereto  at  the  time  of  executing  it,  a  certificate  that  it  was  given 
for  value  received,  and  that  it  will  be  paid  when  due,  he  will  be 
estopped  from  setting  up  usury  as  a  defense  to  it  in  an  action  by 
a  honajide  holder  for  value.  One  who  transfers  a  note  void  for 
usury  with  full  knowledge  of  its  invalidity,  though  without 
indorsement  is  responsible  on  an  implied  warranty  to  repay  the 
amount  of  it.^  When  the  name  of  one  of  two  or  more  obligors, 
in  a  bond  or  other  written  obligation  has  been  forged,  the  sup- 
posed co-obligor,  though  a  surety  only,  and  though  lie  sign  in  the 
belief  that  the  forged  name  was  genuine,  is  nevertheless  bound,  if 
the  payee  or  obligee  accept  the  instrument  without  notice  of  the 
forgery.* 

§  1013.  In  regard  to  bonds,  where  a  special  agent  is  clothed 
with  the  apparent  authority  to  make  an  unconditional  delivery  of 
a  bond,  the  obligee,  without  any  knowledge  that  any  conditions 

1  Ferguson  v.  Hamilton,  35  Barb.  «  Helms  v.  lus.  Co.,  73  N.  825; 
427;  Muuson  v.  Anthony,  3  Keyes,  State  v.  Pepper,  31  lud.  7G;  Veazie 
609;  Parshall  v.  Lamereaux,  37  Barb.  v.  Willis,  6  Gray,  90;  Craig  v.  Hobbs, 
189;  Smilli  V.  Monroe,  84  N.  Y.  534.  44   Ind.   363;   Stoner  v.   Millikeu,   85 

2  Chamberlain  v.  Townsend,  26  111.  218;  SeJser  v.  Brock,  5  Ohio  St. 
Barb.  611;  McKnight  v.  Wheeler,  6  302;  Bigelow  v.  Comegys.  5  Ohio  St. 
Hill,  492.  256;  Hagar  v.  IMoimts,  5   Blackf.  57: 

»  Bank  v.  Townsend,  29  Barb.  569;  Harter  v.  Moore.  5  Blackf.  367;  CaiT 
Edwards  v.  Dick,  4  B.  &  A.  212;  Bank  v.  JVIoore,  2  Ind.  602;  State  v.  Van 
V.  Jarvis,  20  N.  Y.  226;  Plolmes  v.  Pelt,  1  Ind.  304;  Dearsdorf  v.  Fores- 
Williams,  10  Paige.  326;  French  v.  man,  94  Ind.  481;  Ins.  Co.  v.  Brooks, 
Rowe,  15  Iowa,  €63.  Me. 
Vol.  I.— 72 


1138  The   Law  of  Estoppel. 

were  imposed  by  the  principal,  to  bo  complied  M'ith  before  the 
agent  is  authorized  to  deliver  the  bond,  and  the  bond  is  delivered 
to  the  obligee,  nothing  short  of  absolute  notice  will  vitiate  or 
avoid  it,  and  the  sureties  are  estopped  from  setting  up  anything 
in  order  to  vitiate  the  bond.  The  surety  signs  an  instrument 
complete  on  its  face,  and  delivers  it  to  the  principal  to  pass  to  the 
obligee.  If  he  impose  any  condition  upon  his  delivery,  he  must 
rely  upon  the  principal  to  execute  that  condition,  for  he  has  made 
liim  Jiis  agent  for  the  general  purpose  of  a  delivery,  and  has 
clothed  him  Avith  the  imHcia  of  a  sub-agency.  The  obligee 
accepts  an  instrument  perfect  in  form  and  execution,  which 
comes  to  him  from  the  person  who  should  have  possession  of  the 
instrument  for  the  purpose  of  such  delivery.  The  entire  trans- 
action, so  far  as  the  obligee  is  involved,  is  according  to  the  ordi- 
nary and  natural  course.  The  surety,  liowever,  while  he  executes 
the  instrument  and  places  it  in  the  usual  channel  for  delivery, 
departs  from  the  ordinary  course  of  procedure  by  circumscribing 
the  general  authority  by  a  condition  unknow  to  the  obligee.  The 
condition  is  disregarded,  a  fraud  is  accomplished,  and  he  who  has 
not  scrupled  to  trust  his  principal  with  the  semblance  of  a  gen- 
eral authority  to  make  the  delivery,  must  stand  the  hazard  he  has 
incurred.  So  where  a  surety  signed  a  county  treasurer's  bond,  at 
the  request  of  the  principal  obligor,  after  the  signatures  of  other 
sureties,  Avithout  reading  it,  or  hearing  it  read,  or  asking  what  it 
was,  upon  being  told  by  the  principal  that  it  was  a  county  paper, 
such  surety  is  not  released  by  the  fact  that  one  of  the  signatures 
is  forged.  When  a  bond  has  been  signed  and  delivered  to  the 
principal  obligor  by  a  surety,  upon  the  condition  that  others,  not 
named  in  the  instrument,  shall  sign  before  it  is  delivered  to  the 
obligee,  and  it  is  delirered  without  the  signatures  being  obtained, 
and  received  by  the  obligee  without  notice  of  such  condition  of 
circumstances  which  should  put  liim  upon  inquiry,  the  condition 
imposed  will  not  avail  the  sure4y.  This  is  not  a  question  of  the 
power  of  the  principal  to  deliver  tije  bond  in  its  apparently  per- 
fect condition,  but  simply  a  question  of  estoppel.'     In  the  lirst 

1  Deaisdorf  v.    Foiesiiian,  24  Ind.  sou  v.  Board,  71  Pa.  St.  351 ;  ]\lillc'r  v. 

481;   Webb   v.    Baiid,   27    lud.    3G8;  Flotcber,  27  Gratt.  403;  Slate  v.  Pot- 

Bhickwell     V.     Stale,    26     Ind.    204;  ter,  63   3I().    212;   Brown   v.  Probate 

■\Vri^-bt  V.  Harris,  31  Iowa,  272;  Simp-  Ct.,  42  Mich.  501;  Probate  Ct.   v.  St. 


Unsealed  Instruments. 


1139 


case  cited,  tlie  court  sa\^ :  "  Strangers  can  only  look  to  the  acts  of 
the  parties,  and  to  tlie  external  indicia  of  property,  and  not  to  the 
private  communications  which  may  pass  between  a  principal  and 
his  broker ;  and  if  a  person  authorize  another  to  assume  the 
apparent  right  of  disposing  of  property  in  the  ordinary  course  of 
trade,  it  must  be  presumed  that  the  apparent  authority  is  the  real 
authority.  I  cannot  subscribe  to  the  doctrine  that  a  broker's 
ensajrements  are  necessarilv,  and  in  all  cases,  limited  to  his  actual 
authority,  the  reality  of  whicli  is  afterward  to  be  tried  b}'  the 
fact.  It  is  clear  that  he  may  bind  his  principal  within  the  limits 
of  the  authorit}'^  with  which  he  has  been  apparently  clothed  by 
the  principal  in  respect  to  the  sul)ject-matter  ;  and  there  would  be 
no  safety  in  mercantile  transactions  if  he  could  not.  If  the  prin- 
cipal send  his  commodity  to  a  place  where  it  is  the  ordinary  busi- 


Clair,  52  Yt.  24;  Brown  v.  Perkins, 
Micb.  ;  Cutler  v.  Roberts,  7  Xeb. 
4  ;  State  v.  Lewis,  73  N.  C.  438;  Hunt 
V.  State,  63  Ind.  321;  Duir  v.  U.  S., 
16  Wall.  1;  Bank  v.  Goss,  31  Vt.  315; 
Rbodes  v.  Scbool  Dis.,  30  .Me.  117; 
Butler  V.  U.  S.,  21  Wall.  272;  Mc- 
Cormick  v.  Bay  City,  23  Mich.  457; 
Smith  V.  Peoria  Co.,  59  111.  412:  Tid- 
ball  V.  Halley,  48  Cal.  610;  Kicbard- 
son  V.  Rogers,  50  How.  P.  403;  State 
V.  Garden,  32  Ind.  1;  Kash  v.  Fugate, 
24  Gratt.  202;  Russell  v.  Pieer,  56  N. 
Y.  67;  State  v.  Peck.  53  Me.  234; 
Bartletl  v.  Board,  59  111.  364;  Lyttle 
V.  Cozad,  21  W.  Ya.  183;  Ney  v.  Orr, 
2  Mont.  559;  Smith  v.  ]\Ioberly,  10  B. 
3Ion.  260;  ]\Iilkr  v.  Parker,  2  Met. 
(Ky.)  608;  Jordan  v.  Jordan,  10  Lea, 
124;  Cutter  v.  Roberts,  3  Neb.  637; 
Ward  V.  Ilackett,  30  Miim.  150; 
S.  C,  44  Am.  R.  187;  Chicago  v. 
Gage,  95  111.  593  ;  S.  C,  35  Am. 
R.  182;  Goodman  v.  Litaker,  84  N. 
C.  8;  S.  C,  37  Am.  R.  602  ;  Clark 
V.  Biyce,  64  Ga.  486  ;  Helms  v. 
Agricultural  Co.,  73  Ind.  325;  S. 
C,  38  Am.  R.  147;  Agricultural 
Co.  V.  Cardwell,  73  Ind.  555;  Wright 
V.  Lang,  06  Ala.  389;  Gary  v.  State, 


11  Tex.  App.  527;  Bramley  v.  Wilds, 
9  Lea,  674;  Rhode  v.  McLain,  104  111. 
467;  Tidball  v.  Halley,  48  Cal.  610; 
Ins.  Co.  V.  Wilcox,  8  Biss.  C.  C.  197; 
Stern  v.  People,  102  111.  540;  Mowbray 
V.  Peru,  88  Ind.  324;  Yass  v.  Riddick. 
89  N.  C.  6;  State  v.  Harney,  57  Miss. 
863;  Allen  v.  Marney,  65  Ind.  398; 
Barnes  v.  Lewis,  73  Ind.  N.  C.  138; 
Auderson  v.  Warren,  71  111.  20;  Guyn 
V.  Patterson,  72  N.  C.  179;  Hunt  v. 
State,  53  Ind.  321;  Howell  v.  Parsons, 
89  N.  C.  230;  Branch  v.  Ball,  45  Ind. 
213;  Spitler  v.  James,  32  Ind.  202; 
Mowbray  v.  State,  88  Ind.  384;  Lewis 
V.  Comm'rs,  70  Ga.  486;  Gothrupt  v. 
Williamson,  61  Ind.  599;  State  v. 
Pepper,  31  Ind.  76;  Stoner  v.  Milli- 
ken,  85  111.  218;  Selser  v.  Brock,  3 
Ohio  St.  302;  State  v.  Gorman,  75 
3Io.  370;  West  v.  Thompson,  49  Mo. 
188;  Cahill's  Appeal,  48  Mich.  616; 
Ahrend  v.  Odiorne,  125  Mass.  50  ; 
Slate  V.  Yan  Pelt,  1  Ind.  304;  Yeazie 
V.  Willis,  6  Gray,  90;  Craig  v.  Hobbs, 
44  Ind.  363;  Bigelow  v.  Comegys,  5 
Ohio  St.  256  ;  Hagar  v.  Mounts,  3 
Blackf.  57;  Ilarter  v.  Moore,  5  Blackf. 
367;  Carr  V.  Moore,  2  Ind.  602. 


1140  The  Law  of  Estoppel. 

uess  of  the  person  to  whom  it  is  coiiiided  to  sell,  it  must  be 
intended  that  the  commodity  was  seiit  thither  for  the  purpose  of 
sale.  If  the  owner  of  u  horse  send  it  to  a  repository  of  sale,  can 
it  be  implied  that  he  sent  it  thither  for  any  other  purpose  than 
that  of  sale  ?  Or  if  one  send  goods  to  an  auction  room,  can  it 
be  supposed  that  he  sent  them  thither  merely  for  safe  custody  ?'" 
And  where  the  surety  signs  and  delivers  the  bond  to  the  princi- 
pal, from  whom  it  would  naturally  pass  to  the  obligee,  are  we  to 
suppose  that  such  delivery  to  the  principal  was  merely  for  safe 
custody  ?  The  rule  laid  down  in  the  case  cited  is,  where  the 
conmiodity  is  sent  in  such  a  way,  and  to  such  a  place,  as  to  exhibit 
an  apparent  purpose  of  sale,  the  principal  will  be  bound,  and  the 
purchaser  safe.  If  the  servant  of  a  horse-dealer,  with  express 
directions  not  to  warrant,  do  warrant,  the  master  is  bound ; 
because  the  servant,  having  a  general  authority  to  sell,  is  in  a  con- 
dition to  warrant,  and  the  master  has  7iot  notified  to  the  world 
that  the  general  authority  is  circumscribed.  And  is  not  tlie 
surety  upon  a  bond,  \tl)0  delivers  it  to  his  principal  in  apparent 
proper  condition  to  be  delivered  by  him  to  the  obligee,  and  with 
the  general  authority  to  make  such  delivery,  but  circumscribed  by 
a  condition,  unknown  to  the  obligee,  bound  by  the  delivery  which 
the  principal  may  make  in  disregard  of  the  condition  ?  An 
agent's  authority  is  that  which  is  given  by  the  declared  terms  of 
his  aj^puintiuent,  notwithstanding  secret  instructions  ;  or  that 
with  which  he  is  clothed  by  the  character  in  which  he  is  held  out 
to  the  world,  although  not  within  the  W'.  rds  of  his  commission. 
Whatever  is  done  under  an  authority  thus  manifested,  is  actually 
within  the  authority,  and  the  principal  is  bound  for  that  reason  ; 
for  he  is  l)Ound  equally  by  the  authority  which  he  actually  gives, 
and  by  that  which,  by  his  own  acts,  he  appears  to  give.  The 
appearance  of  the  authority  is  one  thing,  and  for  that  the  princi- 
pal is  re.sp(.)nsil)le."  The  surety  places  the  instrument,  perfect 
upon  its  face,  in  the  hands  of  the  proper  person  to  pass  it  to  the 
o!)ligee,  and  the  law  justly  holds  that  the  apparent  authority  with 
which  the  surety  has  clothed  him  shall  be  regarded  as  the  real 
authority,  and  as  the  condition  imj)osed  upon  the  delivery  was 
unknown  to  the  obligee,  therefore  the  benefit  of  such  condition 
shall  not  avail  the  surety. 

'  Pickering  v  Busk,  15  East,  38. 


Unsealed  Instruments.  1141 

Thus,  ill  our  opinion,  should  the  rule  be  established  upon  prin- 
ciple ;  and,  as  it  appears  by  the  examination  we  have  made,  that 
the  autliorities  relied  upon  to  sustain  a  contrar}'  rnle  are,  in  tlie 
main,  irrelevant,  and  are  in  turn  quoted  to  support  the  cited 
decisions  which  are  really  in  point,  Ave  are  inclined,  after  a  review 
of  all  the  cases,  to  regard  the  real  weight  of  well-considered  decis- 
ions as  sustaining  the  rule  which  to  us  seems  to  rest  also  upon  a 
correct  principle.  • 

§  1014,  A  much  broader  scope  has  been  given  to  the  doctrine 
of  estoppels  in.  imis^  both  in  this  country  and  in  England,  than 
formerlv  obtained  ;  and  it  is  now  established  that  whenever  an 
act  is  done  or  a  statement  made  b}'  a  party,  which  cannot  be  con- 
tradicted or  contravened  without  fraud  on  his  part  and  injury  to 
others  whose  conduct  has  been  influenced  by  the  actor  admission, 
the  character  of  an  estoppel  will  attach  to  wliat  would  otherwise 
be  mere  evidence.  The  estoppel  must  obviously  be  limited 
within  such  bounds  as  are  sufMcient  to  put  the  party  who  has 
dealt  on  the  faith  of  appearances  that  turn  out  to  be  incorrect,  in 
the  same  position  with  reference  to  the  author  of  such  appear- 
ances as  if  they  were  true.  Courts  have  been  for  some  time 
favorable  to  the  utility  of  the  doctrine  of  estoppels,  hostile  to  its 
technicality.'  The  rule  is  "  that  where  a  note  with  the  names  of 
certain  persons  upon  it,  who  stood  in  the  relation  of  co-sureties 
for  the  maker,  has  been  offered  for  discount,  and  not  being  satis- 
factory, the  name  of  another  person  has  been  procured,  who  also 
became  a  surety  for  the  maker,  all  these  persons  are  co-sureties 
with  one  another,  and  subject  to  mutual  contribution  though  the 
earliest  sureties  had  no  knowledge  of  the  last  hecoming  a  surety.''''^ 

In  State  ^».  Pepper'  the  court  say,  "  Every  one  must  allow  that 
it  would  be  a  monstrous  violation  of  law,  justice  and  good  faith, 
to  permit  one  party  to  a  contract  to  introduce  into  it  conditions, 
upon  the  happening  of  which  alone  he  will  be  bound,  that  are  not 

J  Smith    V.    Newton,    38    111.    230;  Coons,  8  Denio,  130;   S.  C,  6  N.  Y. 

Knoebel  V.  Kirclier,  33  111.  308;  State  33;   Woodworth   v.    Bowers,    5   Ind. 

V.  Pepper,  31  Ind.  76.  277 ;   Sesson  v.  Barrett,  6  Barb.  I'JO; 

^  Bearing  v.  Earl  of  Winchelsea,  1  S.  C,  2  N.  Y.  406;  McMel  v.  Sand- 
Leading   Cases   in   Eq.  120;    Stout  v.  ford,  3  B.  Mou.  11. 
Vanze,  1  Robinson  (Va.)  169;  Warner         ^  31  i^^   75. 
V.   Price,   8  Wend.   397;    Norton   v. 


1142  The  Law  of  Estoppel. 

made  known  to  tlic  other  party.  Is  it  any  less  so  to  permit  a 
man  to  deny  liis  own  solemn  declaration  that  he  has  become  a 
party  to  it,  when  that  declaration  has  l)een  communicated  to  the 
other  party,  and  acted  npou  by  him  to  his  prejudice,  nnder  cir- 
cumstances not  calculated  to  excite  even  a  suspicion  that  such  a 
denial  would  ever  be  attempted?  That  the  estoppel  imposed  !)y 
law,  in  a  case  like  the  present,  would  not  apply  in  a  case  where 
thei'e  was  anything  upon  the  face  ot"  the  paper,  or  in  the  circum- 
stances attending  the  reception  of  it  by  the  obligee  or  his  agents, 
to  put  him  upon  inquiiy,  nor  where  the  obligee  has  not  been 
induced  to  act  to  his  pi'ejudice  by  the  imprudent  act  of  the 
obligor,  may  well  be  conceded,  and  it  is  believed  that  no  well 
considered  case  has  ever  gone  further.  If  the  doctrine  contended 
for  can  prevail,  it  is  not  easy  to  perceive  why  sureties,  who  may 
hereafter  find  themselves  in  a  similar  unfortunate  position,  may 
not  with  equal  propriety  come  into  court  and  set  up,  and  testify 
to,  some  purely  mental  reservation  which  should  exclude  the  idea 
of  an  intention  on  their  part  to  make  an  absolute  delivery;  for  it 
is  certainly  true  that  the  question  of  delivery  depends  upon  an 
act  done  and  the  intent  with  which  it  is  done." 

§  1015.  In  State  v.  Potter'  on  a  similar  bond  the  court  say, 
"  Here  the  surety  who  defends  this  action,  had  invested  the  prin- 
cipal with  an  apparent  authority  to  deliver  tlie  bond  ;  and  there 
was  nothing  on  the  face  of  the  bond,  or  in  any  of  the  attending 
circumstances,  to  apprise  the  official  who  accepted  it,  that  there 
was  any  secret  agreement  which  should  preclude  the  acceptance 
of  the  bond,  and  the  surety  is  alone  in  fault  in  the  matter,  as  but 
for  his  unwarranted  trust  in  Turley,  the  latter  would  never  have 
had  it  in  his  power  to  occasion  the  loss  which  the  beneficiaries  of 
this  bond  must  suffer,  if  the  defense  made  by  the  surety  is  suc- 
cessful. 

"  Surely  then,  a  more  opportune  application  of  the  language 
of  Lord  Ilolt^  could  not  occur,  than  in  the  case  defore  us,  that 
'  seeing  that  somebody  must  be  a  loser  l)y  this  deceit,  it  is  more 
reasonable  that  he  that  employs  and  puts  trust  and  confidence  in 
the  deceiver,  should  be  a  loser  rather  than  a  strangei'.' 

"  If  the  doctrine  of  estoppel  would  7iot  apply  here,  might  not 

>  63  Mo.  213.  ""  Hera  v.  Nichols,  1  Salk.  289. 


Unsealed  Instruments.  1143 

the  significant  query  well  be  asked,  to  what  state  of  fac^s  would 
it  apply  ? 

"Now,  the  rule  is  well  settled,  that  if  I  stand  by,  and, 
without  objection,  see  another  disj)ose  of  my  pro[>erty  I  can- 
not be  afterward  Iieard  to  assert  ownersliip  in  it  ;  and,  this, 
in  accoi'dance  with  the  maxim  :  '  that  he  who  did  not  si)eak 
when  he  should  have  spoken,  shall  not  be  heard,  now  that  he 
should  be  silent.'  In  such  instances  the  question  of  power  to 
make  the  sale  and  pass  the  title  is  one  not  worthy  of  a  moment's 
consideration.  The  oidy  proper  inquiry  is,  did  I,  by  my  silence, 
give  the  purchaser  reason  to  infer  that  his  vendor  had  the  right 
to  dispose  of  the  property  ?  If  so,  then,  upon  every  principle  of 
fair  dealing,  the  true  basis  of  such  estojipels,  I  am  estopped  to 
assert  anything  to  the  contrary  of  what  my  silence  might  natur- 
ally be  inferred  to  indicate,  and  the  hypothetical  case  is  by  no 
means  stronger  than  the  real  one  under  discussion.  For  the 
officer  to  whom  was  committed  the  d'lty  of  taking  the  bond  had 
literally  conformed  to  tliat  duty,  by  the  acceptance  of  an  instru- 
ment perfect  in  every  particular,  and  emanating  from  the  proper 
custody ;  and  he  had,  therefore,  the  riglit  to  infer,  and  it  was  the 
defendant's  conduct  which  gave  origin  to  this  reasonable  infer- 
ence, that  the  delivery  of  the  bond  was  in  conformity  to  the  usual 
course  of  such  transactions. 

"  A  stronger  case  of  estoppel  could  not  well  be  considered 
than  this,  where  a  surety,  after  standing  by  for  years,  and  allow- 
ing the  patrimony  of  orphans  to  be  squandered,  now  steps  in,  at 
this  late  day,  and  asserts  that,  owing  to  a  hitherto  undisclosed 
arrangement,  he,  although  apparently  bound  for  any  default  of 
his  principal,  was  not  in  fact  bound. 

But  there  are  other  elements  which  also  enter  into  a  proper 
consideration  of  this  cause,  and  which,  on  that  account,  should  not 
be  ignored.  Are  not  sureties  sufficiently  solicitous  about  escap- 
ing from  what  they  regarded,  when  signing,  as  remotely  contin- 
gent possibilities,  without  opening  new  avenues  to  facilitate  their 
eager  escape?  And  would  it  not  be  acting  in  flagrant  violation 
of  one  of  the  most  familiar  rules  of  evidence,  and  of  tlie  very- 
spirit  of  the  law  itself,  to  permit  formally  executed  securities 
to  be  annulled  by  testimony  of  some  contemporaneoiis  parol  agree- 
ment?   If,  under  ordinary  circumstances,  such  testimony  would 


1144  The  Law  of  Estoppel. 

be  objectionable,  would  it  nut  be  doubly  obnoxious  in  cases  like 
this  one,  where  the  tiij^reenient  is  kept  sedulouslj  concealed  from 
the  other  contracting  part}'?  There  is  but  one  answer,  an 
emphatic  affirmative  can  be  returned  to  these  questions. 

"  Again,  it  concerns  the  state,  tliat  the  lieritage  of  tiie  helpless, 
confided  to  the  protection  of  her  courts,  should  not  suffer  detri- 
ment. The  consequences  would  be  fraught  with  disaster,  and  it 
would  be  subversive  of  the  plainest  dictates  of  public  policy,  if 
sureties  in  such  cases,  were  permitted,  by  means  of  some  '  lU- 
remembered  conversation,'  or  some  occult  understanding,  never 
disclosed,  but  under  the  sliudow  of  impending  loss,  to  escape 
liabilities  which  their  own  solemn  deed  and  recorded  specialty 
announces  them  to  have  incurred." 

§  1010.  It  may  therefore  be  considered,  as  well  as  settled,  that 
a  bond  regulur  inform,  cannot  be  avoided  by  a  suret}^  upon  the 
ground  that  it  was  delivered  in  violation  of  a  condition  upon 
which  it  was  signed  by  such  surety,  such  condition  being  that 
the  principal  should  not  make  such  delivery  until  it  was  also 
signed  by  a  certain  other  person,  and  the  obligee  having  no  notice 
of  such  condition.  Thus,  where  a  treasurer's  bond  was  written 
by  him,  and  he  left  a  blank  for  the  names  of  his  sureties  and  the 
amount  of  the  penalty  ;  tlie  sureties  filed  a  plea  of  non  est 
factum,  and  it  appeared  on  the  trial  that  the  sureties  signed  the 
bond,  and  the  blank  for  the  amount  of  the  penalty  was  subse- 
quently filled  up  by  the  treasurer  and  delivered  to  the  board,  who 
had  no  notice  that  the  blank  had  been  tilled  after  the  bond  was 
signed.  The  sureties  never  gave  notice  to  the  board  that  the 
bond  had  been  altered,  and  the  treasurer  received  large  sums  of 
money  by  virtue  of  having  given  the  bond,  and  afterwards 
became  a  defaulter  :  if  not  a  fraud  perpetrated  by  the  sureties, 
it  is  unfair  and  unjustitiable  in  morals,  and  would,  if  allowed,  be 
an  ungracious  defense,  and  that  the  bond  did  not  become  void. 
When  commercial  paper,  and  unsealed  agreements  are  signed 
with  blanks,  and  thus  delivered,  and  the  blanks  are  subsequently 
filled,  the  law  presumes  that  authority  to  fill  them  was  given 
at  the  time  of  their  delivery.  Where  sureties  know  that 
there  is  such  a  blank,  and  they  sign  the  instrument  and  fail  to 
notify  the  obligees  that  they  regard  the  bond  as  void,  and  they 
know    that,  by  filing    the    bond,    the    treasurer  would   obtain 


Ujssealed  Instruments.  1145 

money,  it  will  be  inferred  that  they  ratified  the  act,  rather  than 
that  they  were  intending  to  aid  tlie  treasurer  to  perjjetrate  a  fraud 
on  the  obligees.' 

The  case  is  one  where  the  surety  must  run  the  risk  of  the  fraud 
of  his  own  agent.  It  is  the  dutj^  of  the  signer  of  au  instrument, 
under  siich  circumstances,  to  see  to  it  that  the  authority  he  has  so 
delegated  is  not  abused,  and  that  it  is  not  just  nor  reasonable  to 
allow  liitn  to  take  advantage  of  its  abuse  to  defeat  his  obligation. 

A  delivery  of  a  writing  of  this  character,  under  such  circum- 
stances, to  the  principal,  does  not  have  the  effect  of  characteriz- 
ing it  as  a  mere  escrow^  but  on  the  contrary,  the  principal  should 
be  considered  as  tlie  agent  of  the  surety,  and  empowered  by  him 
to  pass  the  writing  to  the  person  to  whom  it  may  be  made  pay- 
able, and  his  delivery  as  being  sufficient  to  make  it  effectual, 
unless  the  payee  had  notice  of  the  special  terms  upon  which  it 
was  signed.  The  implied  discretionary  authority  to  use  the  note, 
arising  out  of  its  possession  by  the  principal,  uncontradicted  by 
its  terms  or  any  thing  apparent  on  its  face,  can  not  be  restricted 
by  any  agreement  between  the  payors  themselves,  of  which  the 
payee  had  no  notice. 

§  1017.  In  Lyttle  v.  Cozad,"  the  court  said  :  "The  reason  of 
this  is  that  the  sureties,  having  in  such  a  case  willfully  caused  the 
obligee  to  believe  that  they  were  willing  to  become  sureties  on 
the  bond,  in  the  form  and  with  the  names  on  it  which  were  there 
when  it  was  delivered  to  the  obligee,  and  thereby  he  was  induced 
to  accept  such  bond,  and  thus  change  his  previous  position,  the 
sureties  must  thereby  be  concluded  against  the  obligee  from 
averring  that  they  were  not  then  willing  to  sign  the  bond  as  the 
sole  sureties  in  the  form  in  which,  by  their  connivance  and  fault, 
it  had  been  presented  to  the  obligee. 

"  When  one  of  two  innocent  persons  must  suffer  by  the  act  of 
.a  third,  lie  M'ho  has  enabled  such  person  to  occasion  the  loss  must 
sustain  it.  The  sureties,  by  entrusting  the  bond  to  the  principal 
in  such  a  case,  make  him  their  agent  to  deliver  the  bond  to  the 
obligee,  for  this  is  the  ordinary  mode  of  conducting  such  trans- 
actions. And.  having  given  the  principal  instructions  that  he 
must  get  other  securities  on  the  bond  before  he  delivers  it  to  the 

'  Bartlett  v.  Board,  59  111.  364.  «  21  W.  Va.  183 


1146  The  Law  of  Estoppel. 

obligee,  the}',  by  giving  the  bond  in  a  perfect  form,  trust  liini  to 
carry  out  such  instructions  ;  ami  if  he  fails  to  do  so,  but  delivers 
the  bond  to  the  obligee  in  such  perfect  form,  it  mubt  be  obliga- 
tory on  them,  for  it  is  their  fault  that  injury  luis  resulted  ;  and 
the  loss  thus  resulting,  they  cannot  shift  to  the  obligee  by  proving 
such  private  instructions  given  by  them  to  the  principal  ol)ligor, 
except  M'here  the  obligee  is  guilty  either  of  fraud  or  rashness  in 
accepting  such  bond. 

"  In  the  case  of  Miller  v.  Fletcher,'  the  court  seemed  to  have 
gone  still  further  in  holding  a  bond  valid.  In  that  case  it  was 
decided  that  '  if  a  bond,  perfect  on  its  face,  is  delivered  to  the 
obligee  as  an  escrow,  to  be  valid  on  another  person  executing  it, 
it  is  valid,  though  the  condition  is  not  complied  with.'  In  this 
case,  Judge  Staples  reviews  a  number  of  cases  as  sustaining  the 
position  that  a  deed  or  bond  cannot  be  delivered  to  the  obligee  as 
escrow,  and  if  it  be,  the  condition  will  be  regarded  as  invalid  and 
the  deed  or  bond  as  absolute. 

§  1018.  A  surety  signing  and  delivering  to  the  principal 
obligor  a  bond,  before  the  names  of  the  sureties  have  been 
inserted  in  the  body  of  the  instrument,  will  be  held  as  agreeing 
that  the  blank  for  such  names  may  be  filled  in  after  he  has 
executed  it."  When  a  surety  bond  is  executed  by  the  plaintiff, 
at  the  request  of  the  defendant,  and  upon  his  promise  to  indem- 
nify the  plaintiff,  the  defendant  is  estopped  from  alleging  that 
the  bond  given  by  the  plaintiff  is  invalid."  A  party  who  executes 
a  bond  as  surety  for  a  baid^,  which  receives  canal  tolls  on  deposit, 

»  Miller  v.  Fletcher,  27  Gratt.  405.  Co.    v.  McMillan,  29  Ala.  147;   Sliep. 

Simonton's     Case,    4      Watts,     180;  Touch.   Vol.    1,    pp.    58,   59;    Ilicks 

Duncau   v.    Tope,  47  Ga.  445;   R.  It.  v.   Goodes,    12  Leigh,  479  ;  Ward  v. 

Co.  V.  lliffe,  13  Ohio  St.  235;  Ward  v.  Churn,  18  Gratt.  8U1. 

Lewis,  4  Pick.  518;  Currie  v.  Donald.  ^  Eagleton  v.  Gutridgc,  11  M.  &  W. 

3  Wasii.  58;    Brackett   v.  Barney,  28  465;   Smith  v.  Crocker,  5  Alass.  538; 

N.  Y.  333;  Worrall  v.  Munn,  5  N.  Y.  luh.  of  Berwick  v.  Huntress,  53   Me. 

238;    Jackson  v.  Catlin,  2  Johns.  256;  89;   Hudson  v.  Perwett,  5  Biug.  368; 

Black   V.   Shreve,   13  ISI.  J.   Eq.  456;  State  v.   Pepper,    31    Ind.    76;    Mow- 

Herdman   v.    Bratteu,  2  Har.    (Del.)  bray  v.  Stale.  88  Ind.  384;   Lewis  v. 

396;   R.  R.  Co.  v.  Slevens,  10  Ind.  1;  Conmi'rs,  70  Ga.  486. 

Brown   v.    Reynolds,    5   Snecd,    039;  ^  Jarvis  v.    Sewall,  40   Bub.    449; 

Gibson  v.  Partele,  2  Dev.  &  Bat.  530;  Commissioners  v.    Tower,   28  Minn. 

Hay  good   v.  Harley,  8  Rich.  L.  325;  45. 
Graves   v.    Tucker,   18  Mi'^'^.  9;  Ins. 


Unsealed  Instruments.  1147 

and  thus  admits  its  existence,  and,  by  his  bond,  covenants  for  a 
faitliful  performance  of  its  contract,  -s^all,  when  sued  upon  such 
bond,  be  estopped  from  den_ying  that  such  bank  has  a  legal  exist- 
ence.' Where  one  has  voluntarily  signed  a  guardian's  bond, 
which  has  been  accepted  by  the  probate  court,  he  is  estopped  to 
set  up  that  the  court  did  not  order  the  bond  to  be  made.  The 
obligors  in  a  bond  will  be  bound,  though  their  names  are  not 
inserted  in  the  body  of  the  instrument.''  So,  where  the  principal 
is  ■A  feme  covert^  it  will  not  be  avoided  as  to  the  sureties.'  So  an 
attorney  who  tenders  himself  as  a  surety  on  a  bond,  and  is 
accepted  by  the  proper  officer,  cannot  afterwards  plead  his  dis- 
ability to  relieve  himself  from  his  obligation,  even  though  it  is 
provided  by  statute  that  "  no  attorney  shall  be  received  as 
security  in  any  proceeding  in  court."* 

A  person  who  signs,  seals  and  delivers  an  instrument  as  his 
deed,  will  never  be  heard  to  question  its  validity,  upon  the 
ground  that  it  was  not  acknowledged  by  him,  nor  proved  at  the 
time  of  the  delivery.  It  is  the  sealing  and  delivery  that  gives 
efficacy  to  the  deed,  not  proof  of  its  execution.  And  this  princi- 
ple applies  to  all  bonds,  whether  executed  by  public  officers  or 
private  persons,  unless  there  is  a  statute  making  the  acknowledg- 
ment, or  proof  in  court,  essential  to  the  vah"dity  of  the  instru- 
ment.'^ 

§  1019.  Where  a  mortgage  is  made  in  express  terms  subject 
to  certain  bonds  secured  by  a  prior  mortgage,  these  bonds  being 
negotiable  in  form,  and  having  in  fact  passed  into  circulation 
before  such  former  mortgage  was  given,  the  junior  mortgagees, 
and  all  parties  claiming  under  them,  are  estopped  from  denying 
the  amount  or  the  validity  of  such  bonds  so  secured,  if  in  the 
hands  of  hona  fide  holders.^  Where  a  bond  and  mortgage  has 
been  assigned  to  and  deposited  with   the  comptroller  as  security 

'  People  V.    McCumber,   18  N.  Y.  ^  Lobaugh  v.    Thompson,   74  ]Mo. 

315.  COO. 

""  Griramett  v.  ITenderson,  66  Ala.  *  "Wright  v.  Schmidt,  47  Iowa,  223. 

521;   Rader  V.  Davis,  5  Lea.  536;  Mc-  ^  Supervisors  v.    Dunn,   27  Gratt. 

Lain  v.    Simmgton,  37  Ohio  St.  484;  009. 

Trustees  v.   Schenk,  10  111.  App.  51;  «  Bronson  v.   E.  R,  2  Wall.   283; 

Scheid    v.   Leibshultz,    51    Ind.    38;  Coulter  v.  Kaighn,  31  N.  J.  L.  98. 
Douker  v.  Atwood,  119  Mass.  146. 


1148  The  Law  of  Estoppel. 

for  circulatins^  notes  of  a  bank,  the  party  wlio  deposited  the  same 
is  esto])pod  from  denying  tlieir  vah'dity  in  his  hands.  And  if 
they  have  been  sold  by  the  comptroller  in  the  party's  presence, 
the  party  making  no  objection  thereto,  he  is  estopped  from  deny- 
ini^  their  validity  in  tlie  hands  of  the  purchaser.'  One  wiio  guar- 
antees "in  writing  the  payment  of  a  bond  assigned  b}"  him,  thereby 
estops  himself  from  denying  in  an  action  on  the  guaranty,  that 
the  makers  of  the  bond  were  competent  to  contract  in  the  man- 
ner they  did.  The  guaranty  of  the  payment  of  the  bond  by  the 
defendant,  imports  an  agreement  or  undertaking  that  the  makers 
of  the  bond  were  competent  to  contract  in  the  manner  they  did, 
and  the  instrument  is  a  binding  obligation  upon  the  makers." 
If  an  obligor,  who  was  also  one  of  the  obligors  in  a  bond,  could 
not  make  a  delivery  to  himself,  an  assignment  and  delivery  of 
the  bond  to  a  third  person  estops  him  from  setting  up  the  objec- 
tion in  a  suit  on  the  bond  by  the  assignee.  It  is  like  the  case  of 
a  partner  making  the  note  payable  to  one  of  the  firm,  which 
becomes  -valid  and  collectible  at  law  in  the  hands  of  a  honafide 
holder.'  It  is  the  dut}^  of  the  obligor,  in  a  voluntarj'  bond,  to 
add  the  stamp,  and  neither  he  nor  his  sureties  can  allege  his  own 
neglect  in  avoidance  of  the  stamp." 

§  1020.  Where  there  has  been  a  special  contract,  and  the  plaint- 
iff has  performed  a  part  of  it  according  to  its  terms,  and  has  l)een 
prevented  by  the  act  or  consent  of  the  defendant,  or  by  the  act 
of  the  law  from  performing  the  residue,  he  may  in  general 
assumpsit  recover  compensation  for  the  work  actually  performed, 
and  the  defendant  cannot  set  up  the  special  contract  to  defeat 
him.  But  where  there  is  an  entire  executory  contract,  and  the 
plaintiff  has  performed  part  of  it,  and  then  willfully  refuses  with- 
out legal  excuse,  and  against  defendant's  consent  to  perform  the 
rest,  he  can  recover  nothing  either  in  general  or  special  assumpsit. 

1  Land  v.   Shackfonl,  5  N.  H.  133;  Coggill   v.   Bank.   1   N.  Y.    11:];  Mc- 

RouikIs  v.  Baxter,  4  jMc.  454;  Ayer  v.  Laugliliu  v.  McGm^ern,  34  Barb.  208; 

Hawkes,  11  N.   H.   148;   Ketclium  v.  Eiwin  v.  Downs,  15  N.  Y.  575. 

Evcrfson,    13    Johns.    365;     Hill    v.  ^  Bradford    v.    Williams,   4    How. 

Grosser,  .59  N,  H.  513;  Green  v.  Green,  576. 

9  Cow.  46;  Hubbard  v.  Briggs,  31  N.  "  McGovern  v.  Iloesback,  53  Pa.  St. 

Y.  518;  Remsen  v.  Graves,  41  N.  Y.  76;  Chaffee  v.  Ludelliug,  27  La.  Ann. 

471.  607. 

"ZabrLskie  v.  R.  R.,  23  How.  399; 


Unsealed  Instruments.  1149 

No  one  who  waives  or  dispenses  with  the  performance  of  a  con- 
tract can  relj  upon  the  faihire  to  perform  it,  either  as  a  defense 
or  a  cause  of  action,  for  no  one  can  complain  of  a  default  which 
he  has  caused  or  sanctioTied.'  A  stranger  to  a  contract  is  estop- 
ped from  taking  advantage  of  a  breach  of  its  conditions.  "Where, 
in  part  performance  of  a  contract,  a  party  has  advanced  money  or 
done  an  act,  and  then  stops  short  and  then  refuses  to  proceed  to 
its  conclusion,  the  other  party  being  ready  and  willing  to  proceed 
to  fulfill  all  his  stipulations  according  to  the  contract,  such  first 
named  party  is  estopped  from  recovering  back  what  has  thus  been 
advanced  or  done.'' 

§  1021.  A  party  performing  acts  under  a  contract  is  bound 
thereby,  although  it  is  signed  by  the  other  party  only.^  So,  where 
a  party  accepts  a  performance  different  from  that  contracted  for, 
will  estop  the  i)arty  from  taking  advantage  of  the  failure  to  per- 
form in  accordance  with  the  contract."  The  vendor  or  party  to  be 
charged  who  has  subscribed  the  contract  is  estopped  by  his  signa- 
ture fi-om  denying  tliat  the  contract  was  validly  executed,  although 
not  signed  by  the  other  party  who  sues  for  the  performance.^ 
One  Avho  knowingly  permits  a  stipulation  to  be  excluded  from 
tlie  writing,  is  estopped  from  setting  it  up  as  part  of  the  contract. 
Sucii  testimony  eaimut  be  received  on  the  ground  of  fraud,  where 
it  is  the  only  evidence  of  the  alleged  deceit,  nor  unless  a  founda- 
tion is  laid  by  other  proof."  When  the  wi'iting  purports  to  con- 
tain the  contract,  the  parties  are  estopped  from  setting  up  any 

1  Sluiw  V.  Turnpike  Co.,  2  Pa.  St.  Ca.  60;   Roget  v.   Merritt,  2  Caines, 

454;   McKee  v.  Miller,  4  Blackf.  222;  120;  Russell  v.  Nicholl,  3  Wend.  112; 

Young  V.  Hunter,  GN.  Y.  203;  Bout-  Shriley    v.    Shriley,    7    Blackf.    452; 

well  V.  O'Keefe,  32  Barb.  434;  Hart  v.  Pennimau  v.  Hartshorne,  13  Mass.  88; 

Lanman,  29  Barb.  410.  Fowler  v.  Freeman,  9  Ves.  357;  Wood- 

^  Hansbrough  v.  Peck,  5  Wall.  497.  ward  v.  Aspinwal,  3  Sand.  272;  Wor- 

3  Street   v.   Chapman,  29   Ind.   142;  rail  v.  Munn,  5  N.  Y.  229;  Sutherland 

Smith  V.  Mor.se,  20  La.  Ann.  220;  Mc-  v.   Briggs,    1    Hare,  34;   Schneider  v. 

Millau  V.  Mich.  &c.  Co.,  IG  Mich.  79.  Morris,  2  M.  &  S.  286;  Hattonv.  Grey, 

*  Gilraau  v.  Douglass,  G  Nev.  27.  2  Cas.  Ch.  1G4;  Martin  v.  INIitchell,  2 

5  Clason   V.    Bailey,    14  John.   4SG;  Jac.  &  M.  426. 
Allen  V.  Bennett.  3   Taunt.  169;    Mc-         «  Proctor  v.  Ghilson,  49  N.  H.  62; 

.Crea  V.  Purmort,  16  Wend.  465;  Seton  McElderry    v.    Shipley,    2    Md.    25, 

v.Slade,  7  Ves.  265;  Davis  V.  Shields,  Broughton   v.    Coflfer,  18   Gra«.   184- 

26  Wend.  362;  Rogers  v.  Saunders,  16  Beers  v.  Beers,  22  IMich.  42;  Fultoa  v 

Me.  92;   Ballard  v.   Walker,  3  John.  Hood,  34  Pa.  St.  365. 


1150  The  Law  of  Estoppel. 

stipulation  which  does  not  appear  in  the  writing,  and  the  case  can 
not  bo  taken  out  of  this  rule  by  alleging  that  the  writing  was  exe- 
cuted on  the  faith  of  an  assurance  that  the  stipulation  should  be 
as  valid  as  if  it  had  been  inserted  in  the  instrument.* 

§  1022.  Contracts  vitiated  by  fraud  are  regarded  by  the  law 
as  voidable,  not  void.  So  a  n)an  who  has  his  option  whether  he 
will  affirin  a  particular  act  or  contract,  must  either  elect  to  affirm 
or  disaffirm  it  altogether.  He  cannot  adapt  that  part  which  is 
for  his  benefit  and  reject  the  rest.  He  cannot  do  both,  theiefore, 
if  a  party  with  knowledge  of  a  fraud  in  a  contract  which  would 
enable  him  to  avoid  it,  treats  it  as  a  subsisting  contract,  he  is 
estopped  afterwards  from  repudiating  it."  A  party  delivering 
goods  and  inducing  his  creditor  to  accept  them  in  payment,  is 
estopped  from  alleging  the  contract  to  be  void,  and  recovering 
their  price.'  If  the  vendor  of  a  chattel  receives  payment  of  the 
purchase  money  and  delivers  possession  of  the  property  to  the 
purchaser,  he  is  estopped  from  asserting  that  the  contract  is 
invalid,  whether  such  invalidity  arises  from  the  illegality,  or  of 
the  consideration,  or  from  the  legal  incapacity  of  the  purchaser 
to  make  the  contract.'  A  party  to  an  illegal  contract  is  not 
allowed  by  an  allegation  of  his  own  turpitude  to  recover  back 
what,  in  pursuance  of  a  forbidden  bai-gain  he  has  delivered  to  the 
other  party,  or  in  any  way  avoid  the  bargain  when  once  executed." 
A  party   who  lends  money,  or  one   who  sells   land   or  personal 

'  Ruse  V.  Ins.  Co.,  23  K   Y.   516  ;  58  N.  Y.  515;  Riclimonav.  R.  n.  Co., 

McElderry  v.  S  ipley,  2  Md.  25;  Wil-  33  Iowa,  422. 

son  V.  AVatts,  9  .Md.35G;  Smith  v.  Wil-  =*  Fowler  v.    Moller,    10  Bosw.  874; 

liams,    1    Murphy,    426  :   Howard   v.  Bronsou  v.  Wiman,  8  N.  Y.  182. 

Thomas,  12  Ohio  N.  S   201.  ■*  .Morris  v.  Hall,  41  Ala.  510;  llarbiu 

2  People  V.  Stevens,  71    N.   Y.  527;  Levi.  6  Ala.  399. 

Sclway  V.  Fogg,  5M.  &  W.  83;R.  R.  'Evans  v.   Trenton,    24  N.    .1.  L. 

Co.  V.  Rowe,  24   Ind.    24;  Veruall  v.  764;  Hendrickson  v.    Evans,    25   Pa. 

Vernall,  63  N.  Y.  45;  Bank  v.  Carver,  St.  441;  Hunt  v.  Turner,  9  Tex.  385; 

31  Barb.   230;  Lloyd  v.    Brewster,   4  Jones  v.  Davidson,  2  Sueed,  4t7;  Ins. 

Paige,   537;    Sweetman  v.  Prince,  26  Co.,  in  re,  35  E.  L.  &  E.  178;  Wyciic 

N.    Y.    227;    Bronson   v.   Winian,  10  v.    Greene,    26   Ga.    415;    Baniebe  v. 

Barb.  406;  Reed  v.  Randall  29  N.  Y.  Sauer,  18  La.  An.  148;  Chew  v.  Bank, 

358;  Lake  v.   Dawson,  17  Pick.   284;  14    Md.    299;  Johnson    v.    Byler,  38 

Gurney  v.  R.  R.,  58  N.  Y.  358;  Clark  Tex.  606;  Shawluin  v.  Long,  26  Iowa, 

V.    Wliite,    12   Pet.    178;    Osborn    v.  488;  Rice    v.    R.    R.  Co.,  12  Allien, 

Gance,  60  N.  Y.  540;  Fowler  v.  Mol-  141. 
ler,  10  Bosw.  374;  G.  M.  Co.  v.  Allen, 


Unsealed  Instruments.  1151 

property,  and  receives  tlie  consideration  tlierefor,  is  estopped  from 
setting  up  its  invalidity  by  reason  of  defectiv^e  execution  or  want 
of  authority  in  tlie  party  to  purchase,  nor  can  be  set  up  bis  own 
illegal  acts  for  the  purpose  of  avoiding  the  transaction.'  A  party 
who  has  caused  the  making  of  an  illegal  contract  by  others  cannot 
liave  it  set  aside  to  benefit  himself,  to  the  injury  of  the  contract- 
ing parties.*  So,  where  parties  to  a  contract  have  mutually 
recognized  its  binding  force  upon  them,  by  performance  in  part 
of  its  conditions  and  otherwise,  each  will  be  thereby  estopped 
from  denying  its  obligation  upon  both.'  Thus,  where  a  com- 
pany was,  by  its  articles  of  association,  prohibited  from  issuing 
shares  below  par  without  the  sanction  of  a  general  meeting 
M.  agreed  to  subscribe  for  2,000  shares  in  the  company,  which 
should  be  taken  up  and  paid  for  in  full  by  him  in  such  numbers 
and  at  such  times  as  should  be  recpiired  for  the  purposes  of  the 
company.  On  the  day  he  made  this  agreement,  the  board  of 
directors  agreed  to  pay  him  four  thousand  pounds  in  considera- 
tion of  his  services  rendered  to  the  company.  The  company 
failed.  .  .  .  On  an  action  brought  by  the  company  against  him  for 
specific  performance  of  his  contract,  he  having  acted  in  collusion 
with  the  directors  to  defraud  the  comjjany,  he  was  estopped  from 
setting  up  the  fraud  to  avoid  his  agreement  to  take  his  shares.* 

§  1023.  The  taking  of  usury  is  a  misdemeanor  by  statute  in 
many  of  the  states.  The  borrower  may  set  up  usury  for  the  pur- 
pose of  avoiding  a  contract  tainted  with  it,  but  not  the  lender, 
it  cannot  be  avoided  by  the  party  guilty  of  the  fraud,  he  is  estop- 
ped from  setting  it  up  to  his  own  advantage."  A  party  to  a  con- 
tract who  himself  knowing  the  special  or  technical  meaning  of 
certain  material  words  as  used  in  such  contract,  and  knowing 
that  the  other  party  is  ignorant  thereof ,  falsely  states  to  the  latter 
that  they  have  some  other  or  different  signification,  and  thereby 
induces  him  to  execute  and  act  upon  his  contract  to  his  injury,  is 
estopped  by  such   representations  from  taking  advantage  of  the 

'  Bauk  V.  Case,  99  U.  S.  628;  Shaw-  «  Johnson  v.  Byler,  38  Tex.  602. 

ban  V.  Long,   26  Iowa,  488;  Rice  v.  ^  Richmond  v.  R.  R.  Co.,  33  Iowa, 

R.  R.  Co.,  12  Allen,    141;  Wyche  v.  422. 

Greene,  26  Ga.  415;  Barnebe  v.  Saucr,  *  Tramway's  Co.  v.  Mendel,  38   L. 

18   La.  An.    148;  Chew   v.    Bank,  14  T.  R.  N.  S.  731. 

Md.  209.  6  Lafarge  v.  Herter,  9  N.  Y.  241. 


1152  The  Law  of  Estoppel. 

contract.'  Where  a  contract  on  behalf  of  the  state,  between  an 
ofHcer  thereof  and  an  individual,  is,  pursuant  to  a  power  vested 
in  him  by  the  statute  declared  illegal,  by  the  proper  law  officer  of 
the  state,  the  state,  its  agents  and  servants  are  estopped  from 
denying  its  illegality.''  A  creditor,  who  with  knowledge  of  an 
assignment  b}'  his  debtor,  fraudulent  in  law  upon  its  face  enters 
into  an  agreement  witli  his  debtor  and  the  trustees  named  in  the 
assignment,  for  the  management  of  the  trust  property,  and  the 
distribution  of  its  proceeds  in  accordance  with  the  terms  of  the 
assignment,  the  performance  of  such  agreement  having  been 
entered  upon,  is  estopped  from  impeaching  the  assignment  for 
such  patent  defect.'  A  party  to  a  contract,  after  receiving  the 
benefits  thereof  is  estopped  from  affirming  that  the  same  was  not 
to  be  binding  unless  reduced  to  writing,*  or  that  there  was  no 
written  evidence  of  it.* 

^  1024.  A  creditor  who  has  confirmed  a  fraudulent  deed  by 
receiving  a  benefit  under  it,  or  has  become  a  party  to  it  is  estop- 
ped from  afterwards  impeaching  it.*  Thus  a  creditor  who  has 
levied  on  an  equity  of  redemption,  and  bid  in  the  premises  at  the 
sale,  at  the  value  of  the  equity,  is  estopped  to  deny  the  validity 
of  the  mortgage  although  it  be  fraudulent.'  Where  a  creditor  by 
undertaking  to  discharge  his  debtor,  induces  other  creditors  to 
accept  a  composition  and  discharge  the  debtor  from  further 
liabilit}',  he  is  estopped  from  afterwards  enforcing  his  claim  for 
the  reason  that  it  would  be  a  fraud  on  the  other  creditors.  Where 
the  plaintiffs  sold  the  defendant  a  large  amount  of  wheat  in  bulk, 
and  furnished  him  with  a  weigher's  certificate  of  the  quantity, 
and  were  paid  for  the  quantity  certified,  and  the  defendant  relying 
upon  the  correctness  of  the  certificate,  resold  it  as  of  the  same 
quantity,  the  plaintiffs  are  estopped  from  afterward  disputing  the 
accuracy  of  the  certificate."     Where  a  charter  party  provides  that 

'Calkins    v.    State,    18    Wis.  389;  ^  Edeliu    v.    Clarksoo,    3  Mon.  31; 

Mattoon  v.  Youug,  2  Hun,  559;   State  Gillospii-  v.  Battle,  15   x\.la.  276. 

V.  Loeb,  21  La.  Ann.  599.  «  Kiclianls  v.  AVhite,  7   Minn.  345; 

2  Peckv.  BuiT,  10  N.  Y.  294.  Leniiiy  v.  Biboau,  2  Minn.  291;   But-l 

3  Rappello    V.    Stewart,    27   N.  Y.  v.  Harris.  18  B.  ]Mon.  195. 
310.  '  Brown  v.  Snell,  46  Me.  490. 

*  Miller  v.  McMannis,    57   111.   126;  «  Gillespie  v.  Carpenter,  1  Robt.  (N. 

Conover  v.  Stillwell,  34  N.  J.  L.  54.      Y.)  65;  Woodley  v.  Coventry,  2  H.  & 

C.  164. 


Unsealed  Instruments.  1153 

a  vessel  shall  carry  a  certain  number  of  tons,  and  the  charterer 
permits  her  to  carry  a  less  cargo  without  objection,  he  is  estopped 
from  objecting  that  it  was  not  a  performance  of  the  contract.* 
Where,  under  a  contract  for  the  sale  of  hops,  a  third  j^arty  who 
was  to  inspect  and  brand  them,  neglected  to  put  on  the  brand 
after  inspection,  and  the  purchaser  at  a  time  when  the  omission 
might  have  been  supplied  said  it  would  make  no  difference,  he  is 
estopped  from  insisting  on  the  omission  to  brand  in  an  action 
against  him  on  the  contract.* 

§  1025.  Where  one  purchased  an  interest  in  a  patent,  and 
agreed  with  the  patentee,  upon  certain  conditions,  to  give  his 
personal  attention  to  manufacturing  of  machines  under  the 
patent,  afterwards  made  a  second  agreement  with  the  patentee, 
Mdiereby  he  agreed  to  discontinue  such  manufacture.  He  was 
estopped  in  an  action  brought  against  him  by  the  patentee  for 
continuing  such  manufacture,  and  for  an  account,  from  setting  up 
the  defense  that  such  patentee  was  not  the  original  and  tirst 
inventor  of  the  thing  patented.'  Where  a  party  claiming  to  be 
the  owner  of  a  patent  right  or  a  machine  licenses  another  to 
make  and  sell  such  machine  within  a  certain  territory,  and 
in  consideration  of  such  license  tlie  latter  agrees  to  pay  the  for- 
mer a  given  sum  by  way  of  "■oyalty  on  each  machine  manufac- 
tured by  him  and  sold,  and  a  large  number  of  machines  being 
manufactured,  a  part  of  which  are  sold  and  a  part  remain  on  hand 
the  parties  enter  into  a  compromise  agreement  whereby  the 
licensee  executes  to  the  licensor  his  promissory  note  for  the 
amount  due  under  the  former  contract  for  the  machines  sold,  but 
largely  reducing  the  royjilty  payable  for  the  machines  remaining 
on  hand  and  those  thereafter  to  be  made,  the  makers  of  the  note 
having  fully  enjoyed  without  interruptiori  everything  for  which 
they  stipuhited  in  the  contract  under  which  they  proceeded,  are 
estopped    to    deny    a    consideration    for    the  note  either  on  the 

'Roberts   v.  Opdyke,  1   Robt.    (N.  Hall  v.  Condor.  89E.  C.  L.  22;  Marston 

■Y.)287.  V.     Swett,    66   N.    Y.   206;   Bellas  v. 

'  Clinton  V.  Brown,  41  Barb.  2C:6.  Hays,  5   S.  &   R.  427;   Palmer's   Ap- 

^  Patterson's  Appeal,  99  Pu.  St.  521;  peal,  2  Pitts.  L.  J.  299;  Manf'g  Co.  v. 

Norton   v.    Brooks.    7   H.   &  N.  499;  Supply  Co.,  48  Mich.  331;  Parkliurst 

Hills  V.  Laming.  24  E.   L.  &  E.  452;  v.  Kinsman,  1  Blatchf.  488. 
Angler  v.  Eaton  Co.,  98  Pa.  St.  594; 

Vol.  L— 73 


1154 


The  Law  of  Estoppel. 


ground  of  utility  or  the  want  of  novelty  in  said  machine* 
Where  a  patentee  assigns  his  patent,  he  has  no  right  to  manufac- 
ture the  patented  article,  and  in  an  action  brought  against  him, 
he  cannot  set  up  that  the  patent  was  void  ;  lie  is  estopped  by 
his  deed.''  And  the  same  principle  applies  where  an  assignee 
allows  a  bankrupt  to  transact  business  without  giving  notice  of 
his  adjudication/ 

§  1026.  A  person  who  signs  and  delivers  a  message  under  tlie 
printed  heading  furnished  by  a  telegraph  company  containing 
the  terms  and  conditions  upon  wliich  messages  will  be  sent,  is 
estopped  from  denying  the  agreement  which  he  has  signed  by 
alleging  that  he  never  read  it.'     Where  a  board   of  supervisors 


'  Kinsman  v.  Park,  18  How.  284; 
Baitlett  V.  Holbrook,  1  Gray,  114; 
Cutler  V.  Bov.'en,  11  A.  &  E.  253;  Laws 
V.  Pnrsere,  E.  &  B.  930  ;  Bowman 
V.  Taylor,  2  A.  »£  E.  278;  Davis  v. 
Gray.  17  Ohio  S.  530;  Kernodle  v. 
Hunt,  4  Blackfd.  57;  Wilder  v.  Adams, 
2  W.  &  M.  3--i9;  Jones  v.  Burnham,  67 
Me.  93;  Walton  v.  Lavater,8  C.  B.  (K 
S.)  162;  S.  C,  29  L.  J.  C.  P.  279; 
Edwards  v.  Smith,  63  Mo.  119; 
Marston  v.  Swctt,  G6  N.  Y.  119;  Gil- 
lett  V.  Bate.  86  N.  Y.  87;  Crossly  v. 
Di.xon,  10  H.  L.  C.  293;  Clark  v. 
Adie.  2  App.  Cas.  435;  Smith  v.  Scott, 
6  C.  B.(N.  S.)771;  Chambers  V.  Crich- 
ley,  33  Beav.  274;  Walton  v.  Lavater,  3 
L.  T.  R.  (N.  S.)273;  Palmer's  Appeal, 
96  Pa.  St.  106;  Hall  v.  Condor,  89  E. 
C.  L.  20;  Birdsall  v.  Perrys,  5  Blalch. 
255;  Bellas  v.  Hays,  5  S.  &  K.  427; 
Yaughn  v.  Prrter.  16  Yt.  270;  Purifier 
Co.  V.  Guilder,  3  McCrary.  186;  S.  C, 
9  F.  11.  155;  :\rf'gCo.  V.  Supply  Co., 
48  Midi.  331;  Hayne  v.  Maltby,  3  T. 
R.  438;  jS'otou  v.  Brooks.  7  II.  &  N. 
499. 

*  Hayne  v.  Maltby,  3  T.  R.  438; 
Waltcm  V.  Lavater,  3  L.  T.  R.  (N.  S.) 
272;  Chambers  v.  Crichley,  33  Beav. 
274;  Oldham  v.  Langmead,  3  T.  R. 
429. 


3  Ford,  in  re,  1  Ch.  D.  521;  Engel- 
bach  V.  Nixon,  L.  R.  10  C.  P.  1045; 
Brown,  in  re,  2  Yes.  Jr.  67;  Everett 
V.  Backhouse,  10  Yes.  99;  Butler,  in 
re,  M.  D.  &  D.  73;  Bowne,  in  re,  2  G. 
&  J.  141;  Troughton  v.  Gillej',  Amb. 
629;  Tucker  v.  Herman,  4  D.M.  &  G. 
395;  Wadlingv.  Oliphant,  1  Q.  B.  D. 
145. 

"Lewis  V.  R.  R.,  5  H.  &  K  867; 
Camp  V.  Telegraf  Co.,  1  Met.  (Ky.) 
164;  Andrew  v.  Telegraf  Co.,  17  C.  B. 
3;  McMillan  v.  Telegraf  Co.,  16  Mich. 
79;  Young  V.  Telegraf  Co.,  65  N.  Y. 
163;  Burney  v.  Telegraf  Co.,  18  Md. 
341;  Telegraf  Co.  v.  Gildersleeve,  29 
Md.  232;  Wolf  V.  Telegraf  Co.,  68  Pa. 
St.  83;  S.  C,  1  Am.  R.  387;  Breeze  v. 
Telegraf  Co.,  48  N.  Y.  132;  S.C.,8Am. 
R.  526;  Grinnell  v.  Telegraf  Co.,  113 
Mass.  299;  S.  C,  18  Am.  R.  485;  Swart 
v.Telegrnf  Co.,  18  Hun,  157;  Redpath 
V.  Telegraf  Co.,  112  Mass.  71;  S.  C,  17 
Am.  R.  79;  Telegraf  Co.  v.  Buchanan, 
35  Ind.  429;  S.  C,  9  Am.  R.  744;  Tele- 
raf  Co.  V.  Neill,  57  Te.x.  283;  S.  C. 
44  Am.  R.  589;  Womack  v.  Telegraf 
Co..  58  Tex.  176;  S.  C,  44  Am.  U. 
614;  Becker  v.  Telegraf  Co.,  11  Neb. 
87;  S.  C.  38  Am.  R.  1;  Breeze  v. 
Telegraf  Co.,  45  Barb.  274. 


Unsealed  Instruments.  1155 

accept  and  act  upon  an  account  containing  various  items  pre- 
sented to  them  for  audit  and  allowance,  they  are  estopped  from 
subsequently  objecting  that  the  account  only  is  verified  and  not 
the  items  of  the  account  as  required  by  the  statute.' 

§  1027.  It  is  a  general  rule  of  law  that  all  bills,  notes,  bonds, 
contracts,  &c.,  made,  executed  and  delivered  on  Sunday,  are  void 
between  the  parties  ;  yet,  if  falsely  dated  as  of  another  day,  and 
such  an  instrument  comes  to  the  hands  of  an  innocent  holder,  who 
takes  it  for  value,  without  notice,  the  maker,  acceptor,  iudorser, 
or  guarantor  is  estopped  in  an  action  on  such  instrument,  and  the 
defense  that  it  is  a  Sunday  contract,  and  therefore  void,  cannot 
be  maintained  against  such  innocent  holder.^  Where  one  makes 
a  deed  on  Sunday,  and  fraudulently  dates  it  as  of  another  day, 
and  his  grantee  conveys  the  estate  to  a  stranger  who  is  ignorant 
of  this  fact,  the  grantor  is  estopped  to  set  up  that  the  original 
deed  was  made  on  Sunday.*  An  official  bond  signed  by  the 
surety  on  Sunday  and  handed  to  the  principal,  who  afterwards 
delivers  it  to  the  proper  officer  on  a  secular  day,  who  receives  and 
approves  it,  binds  the  surety.* 

'  Sherman  v.  Supervisors,  30  How.  Mo.  App.  11;  Evansville  v.  Morris,  87 

Pr.    173;    People    v.    Fitzgerald,    54  lad.    269;    S.    C,    44    Am.    R.    763; 

How.  Pr.  1.  Manfg  Co.  v.  Brucker,  111  U.  S.  597. 

^  Ball  V.  Powers,  63  Ga.757;  Leight-  ^  Love  v.  Wells,    25  Iiid.  503;  Riley 

man  v.  Kadetska',  58  Iowa,  676;  Con-  v.  Butler,  36  Ind.  51;  Knox  v.ClilTord, 

tra,  see  Richmond  v.  Moore,  107  111.  38  Wis.  65;  State  v.  Young,  23  Minn. 

429;    S.  C,  47  Am.   R.   445;  King  v.  551;  Hall  v.  Parker,  37  Mich.  590. 

Fleming,  72  111.  21;  Swan  v.  Swan,  ■»  Evansville  v.  Morris,  87  Ind.  269. 
21   F.  R.  299;  Moore  v.  Clymer,  12 


1156  The  Law  of  Estoppel. 


CHAPTER  XYII. 

EQUITABLE  ESTOPPEL, 

AS   APPLIED   TO   THE%  RELATION    OF   PRINCIPAL    AND   AGENT,  MARRIED 
WOMEN,    INFANTS,    ADMINISTRATORS,  &C. 

Section  1028.  The  doctrine  of  election  is  founded  upon  the 
principle  that  there  is  an  implied  condition,  that  he  who  accepts 
a  benefit  under  an  instrument  must  adopt  the  whole  of  it,  con- 
forming with  all  its  provisions,  and  renouncing  every  right  incon- 
sistent Avith  them.  The  principle  is  recognized  and  established  in 
this  country  almost  precisely  the  same  as  in  England,  and  rests 
upon  the  equitable  ground  that  no  man  can  be  permitted  to  claim 
inconsistent  rights  with  regard  to  the  same  subject,  and  that  any 
one  who  claims  an  interest  under  an  instrument,  is  bound  to  give 
full  effect  to  that  instrument  as  far  as  he  can.  A  person  cannot 
accept  and  reject  the  same  instrument,  or  having  availed  himself 
of  it  as  to  part,  defeat  its  provisions  in  any  other  part ;  and  this 
applies  to  deeds,  wills,  and  all  other  instruments  whatsoever.' 
Taking  possession  of  property  under  a  will  or  other  instrument, 
and  exercising  unequivocal  acts  of  ownership  over  it  for  a  long 

1  Wilbanks  v.   Wilbauks,  18  111.  19;  Y.  SoS;  Monette's  Succession,  26  La. 

Walcrs   V.    Howard.  1    Md.  Ch.  112;  An.  26;  Weedon  v.  Landiaux,  26  La. 

M'Ell'resli  V.  Schiley,  2 Gill,  181;  Field  An.  729;  Counibau  v.  Thompson,  111 

V.  Eaton,  1  Dev.  Eq.  283;  Cogdell  v.  Mass.    270;     LilJey    v.    Adams,    108 

Widow,    3    Dess.    846;    Whilldin    v.  Mass.  50;  Sloan  v.  Holcomb,  29  Mich. 

Whilldin.  Kelly's  Ch.  205;  Cauffman  I'yd;    Pickett     v.     Bank,    32     Ark. 

V.  Cauffman,  17   S.  &  R.  16;  Stumps  346;  Walpole  v.  Conway,   Barn.    CIi. 

V.  Findlay,  2  Ravvle,    168;  Preston  v.  159;  Kirkham  v.  Smith,  1    Ves.  2oS; 

Jones,    9  Pa.    St.  450;  George  v.  Bas-  McN?imara  v.  Jones,  1  Bro.  C.  C.  411; 

sing,   15   B.    Mon.   558;    Tierman    v.  Frank  v.  Staudish,  1  Bro.  C.    C.  588; 

Roland,    16    Pa.    St.   430;    Smith    v.  Blake  v.    Bunbury,  4  Bro.  C.  C.  21; 

Gould,   7  M.    &    S.    238;    Patton    v.  Swan  v.  Holmes,  19  Beav.  471;  Wint- 

Moore,  25  Pa.  St.  468;  Glen  v.  Fisher,  our  v.  Clifton,  21  Beav.  447;  Crosby 

6  Johns.    Ch.    33;  Wyche  v.   Greene,  v.    Ld.    Asplown,    10    Ir.    Ch.    119; 

26  Ga.  416;  Simmone  v.  Hendricksou,  Ileale  v.  Fitzraaurice,   13  Ir.  Clu481; 

3  Harr.  103;  Rodermund  v.  Clark,  46  Dillon    v.    Parker,    1    Swanst.    359; 

N.  Y.  354;  Morris  v.  Rexford,  18   N.  Grelton  v.   Howard,    1   Swaust.   409. 


Election^.  1157 

period  of  time,  will  amount  to  a  binding  election  to  confirm  tlie 
instrument.' 

§  1029.  The  same  rules  are  applicable  as  to  election,  acquies- 
cence and  ratification.  Ratification  is  the  adoption  of  a  previously 
formed  contract,  notwithstanding  a  vice  which  rendered  it  rela- 
tively void  ;  and  by  the  very  nature  of  the  act  of  ratification,  con- 
firmation or  aflirmance,  the  party  confirming  becomes  a  party  to 
the  contract ;  he  that  was  not  bound  becomes  bound  by  it,  and 
entitled  to  all  the  benefits  of  it.  He  accepts  the  consideration  of 
the  contract  as  a  suflficient  consideration  for  adopting  it,  and 
usually  this  is  quite  sufficient  to  support  the  ratification.^  Elec- 
tion, ratification  and  acquiescence,  are  prominent  elements  in  the 
creation  of  equitable  estoppels  and  may  be  consolidated  under  the 
general  term  of  estoppel  by  conduct.  Ratification  and  election 
imply  knowledge,  and  so  does  acquiescence.  Estoppels  arising 
from  either  one  of  these  causes  proceed  upon  the  gi'ound  that  the 
party  knows  or  had  notice  of  the  facts  upon  which  the  estoppel 
is  founded  and  to  which  it  refers.  A.n  estoppel  of  this  nature 
cannot  arise,  unless  the  part}^  against  whom  it  is  sought  to  be 
made  available  is  aware  of  his  rights.  A  party  cannot  be  adjudged 
to  have  acquiesced  in,  or  ratified  an  act  of  which  he  has  no  knowl- 
edge, actual  or  constructive.  We  shall  endeavor  in  this  chapter 
to  illustrate  these  principles  by  reference  to  numerous  cases  and 
its  application  to  various  persons,  principal  and  agent,  married 
women,  infants,  trustees,  and  others. 

§  1030.  The  doctrine  of  election  originated  in  inconsistent  or 
alternative  donations  ;  a  plurality  of  gifts,  with  intention,  express 
or  implied,  that  one  shall  be  a  substitute  for  the  rest.  In  the 
judgment  of  tribunals,  therefore,  whose  decision  is  regulated  by 
that  intention,  the  donee  will  be  entitled  not  to  both  benefits,  but 

1  Preston  v.   Jones,  9  Pa.    St.  45G;  Smith  v.  Smith,  14  Gray,  532;  Weeks 

Vanduyne  v  Vanduyne,  17  N.  J.  E.  v.  Patton,    18  Me.    43;  Deslondes  v. 

49;  Smith  V.  Guild,  34  Me.  443;  Lan-  New  Orleans,  14  La.   Ann.  552;   Up- 

dis   V.  Landis,    1     Grant     Cas.     249;  shaw  v.  Upshaw,  2  H.  &  M.  381 ;  Wil- 

Stump  V.    Gaby,  3  D.    M.  &  G.  G23;  son  v.  Hayne,  Cheve.  Eq.  37;  Gaston 

Ranks  v.  Amnion,   27  Pa.    St.    172;  v.Caston,  2  Rich.  1;  Stark  v.  Huuton, 

Benedict  v.  Montgomery,  7  W.  &  S.  IN.    J.    E.    217;   Clay   v.    Hart,    7 

238;  Bradford  v.  Kent,  43  Pa.  St.  474;  Dana,  1. 
Tnrnhow   v.   Groach,   12  Bush,  455;         '  Pearson  v.  Chapin,  44  Pa.  St.  9. 


1158  The  Law  of  Estoppel. 

to  the  choice  of  either.  The  second  gift  is  designed  to  be  effect- 
ual only  in  the  event  of  liis  declining  the  first ;  and  the  snbstance 
of  the  gifts  combined  is  an  option. 

If  the  individual  to  whom,  by  an  instrument  of  doriation,  a 
benefit  is  offered,  possesses  a  previous  claim  on  the  author  of  the 
instrninent,  and  an  intention  appears  that  lie  shall  not  both 
receive  the  benefit  and  enforce  the  claim,  the  same  principle  of 
executing  the  purpose  of  the  donor,  requires  the  donee  to  elect 
between  his  original  and  his  substituted  rights;  the  gift  being 
designed  as  a  satisfaction  of  the  claim,  he  cannot  accept  the 
former  without  renouncing  the  latter. 

§  1031.    A  new  modification  of  the  doctrine  arises  on  the 
occurrence  of  gifts  of  a  peculiar  nature.     The  owner  of  an  estate 
having,  in  an  instrument  of  donation,  applied  to  the  property  of 
another,  expressions,  which,  were  that  property  his  own,  would 
amount  to  an  effectual  disposition  of  it  to  a  third  person,  and 
having  by  the  same  instrument  disposed  of  a  portion  of  his  estate 
in  favor  of  the  proprietor  whose  rights  he  assumed,  is  understood 
to  impose  on  that  proprietor  the  obligation  of  either  relinquishing 
(to  the  extent  at  least,  of  indemnifying  those  whom,  by  defeat- 
ing the    intended   disposition,  he  disappoints)  the  benefit  con- 
ferred on  him  by  the  instrument,  if  he  asserts  his  own  inconsist- 
ent proprietarj'  rights,  or  if  he  accepts  that  benefit,  of  completing 
the  intended  disposition   by  the  conveyance  in  conformity  to  it, 
of  that  portion  of  his  property  which  it  purports  to  effect.     The 
foundation  of  the  doctrine  is  still   the  intention  of  the  author  of 
the  instrument ;  an  intention  which,  extending  to  the  whole  dis- 
position, is  frustrated  by  the  failure  of  any  part ;  and  its  cha/'ae- 
teristic,  in   its  application   to  these  cases,   is,   that  by  equitable 
arrangement,  effect  is  given  to  a  donation   of  that  which  is  not 
the  property  of  the  donor  ;  a  valid  gift,  in  terms  absolute,  being 
qualified  by  reference  to  a  distinct  clause,  which,  though  inopera- 
tive as  a  conveyance,   affords  authentic    evidence  of  intention. 
The   intention    being    assumed,  the  conscience  of  the  donee  is 
affected  by  the  condition  (though  destitute  of  legal  validity),  not 
express  but  implied,  annexed  to  the  benefit  proposed  to  him.     To 
accept  the  benefit,  while  he  declines  the  burden,  is  to  defraud 
the  design  of  the  donor. 

§  1032.  The  doctrine  of  election,  in  common  with  many  other 


Election.  1159 

doctrines  of  courts  of  equity,  appears  to  be  derived  from  the 
civil  law.  In  that  system,  a  bequest  of  property  which  the  tes- 
tator knew  to  belong  to  another,  was  not  void,  but  entitled  the 
legatee  to  recover  from  his  heir,  either  the  subject  of  the 
bequest,  or,  if  the  owner  was  unwilling  to  part  with  it  at  a  rea- 
sonable price,  the  pecuniary  value.'  It  was  also  competent  to  the 
testator,  by  express  direction  (originally  in  the  form  oifidei  com- 
Tnissum,  at  a  later  period  in  terms  of  gift,  under  the  denomina- 
tion of  legatum,  ah  aliquo)^  to  impose  the  obligation  of  providing 
the  bequest  or  its  value,  on  anj^  person  deriving  a  benefit  under 
his  will,*  to  the  extent  of  that  benefit.^  But  a  bequest,  on  the 
erroneous  supposition  that  the  subject  belonged  to  tlie  testator, 
was,  it  seems,  void  ;*  unless  the  legatee  stood  in  a  certain  degree 
of  relation  to  the  testator,*  or  the  subject  was  the  proj)erty  of  the 
lieir." 

In  every  instance,  the  heir  or  legatee  possessed  the  option  of 
accepting  or  renouncing  the  inheritance  or  legacy  thus  burdened, 
but  it  seems  that  no  medium  was  permitted  between  these  alter- 
natives; no  text  has  occurred  recognizing  the  right  of  the  heir  or 
legatee  at  once  to  accept  the  benefit  offered  by  the  Avill,  and  to 
retain  the  property  of  which  it  assumed  to  dispose,  on  the  terms 
of  compensation  or  indemnity  to  the  disappointed  claimant.  The 
effect,  therefore,  of  election  to  take,  in  opposition  to  the  will  was 
forfeiture  of  the  benefit  offered  b}''  it.  The  effect  of  election  to 
take  under  the  will  varied,  as  the  property  of  which  the  will 
assumed  to  deprive  the  legatee  was  pecuniary  or  specific;  in  the 
former  case,  he  was  compelled  to  perforui  the  bequest  to  the 
extent  of  the  principal  and  interest  which  he  had  received  ;  in 
the  latter,  a  peremptory  obligation  was  imposed  to  deliver  the 
specific  object,  though  exceeding  the  amount  of  the  benefit  con- 
ferred.' 

§  1033.  In  the  following  decisions  will  be  recognized  the  doc- 

»  Inst.,  lib.  2,  tit.  20,  S.  4,  tit.  24,  S.         *  Inst.,  lib.  2,  tit.  20,  s.  4;  Dig.,  lib. 

1;  Dig.,  lib.  30,  1.  39,  s.  7;  1.  104,  s  2;  31,  1.  67,  s.  8. 
1.  71,  s.  3;  lib.  32,  1.  30,  s.  6.  ^  Cod.,  lib.  6,  tit.  37,  1.  10. 

»  Dig.,  lib.  32,  1.  1,  s.  6;  1.  14,  s.  2;         «  Dig.,  lib.  31,  1.  67,  s.  8;   Cod.,  lib. 

Cod.,  lib.  6,  tit.  37;  1.  10,  tit.  42,  1.  9.  6,  tit.  42,  1.  25. 

» Inst.,  lib.  2,  tit.  24,  s.  1;  Dig.,  lib.  '  Dig.,  lib.  31,  1.  70,  s.  1. 

30, 1. 114,  s,  3. 


1160  The  Law  of  Estoppel. 

trine  of  election  as  applied  in  circnmstances  constituting  what  in 
courts  of  equity  are  technically  denominated  cases  of  satisfaction. 
Cum  pater  pro  filia  sua,  dotls  oiomine,  centum  jrromisissct, 
deinde  eidem  centum  eadem  Jegasset,  doli  mali  exce^tione  heres 
tutus  erit,  si  et  gener  ex promissione,  et  puella  ex  testamento  agere 
institueret  j  convenire  enim,  inter  eos  oportet,  ttt  alterutra  aciione 
contenti  sint.^ 

Lucius  Titius,  cum  duos  filios  heredes  reUnqueret,  testa - 
viento  ita  cavit  /  Quisquis  miki  liherorum  meorum  heres  erit, 
ejus  Jidei  committo^  ut  si  quis  ex  7ns  sine  liheris  decedat,  heredi- 
tatis  mece  hessem,  cum  m-orietiir,  fratrihus  suis  restituat  j  f  rater 
decedens  fratrein  suiim  ex  dodr ante  fecit  heredem  j  quoaro  an 
jidei  commisso  satisfecerit  f  Marcellus  respondit,  id  quod  ex  tes- 
tamento Lucii  Titii  fratri  testator  debuisset,  pro  ea  parte,  qua 
alitis  heres  extitisset,  peti  posse,  nisi  diversum  sensisse  eurn  pro- 
haretur  /  nam.  parvum  inter  hanc  speciem  interest,  et  cum  alias 
creditor  debitori  suo  extitit  heres:  sed  plane  audiendus  erit 
coheres,  si prohare possit,  ea  mente  testatorum  heredem  instituisse 
fratrem  suum,  -ut  contentus  institutione  fideicommisso  abstinere 
deheret.^ 

§  1031.  By  the  civil  law  the  doctrine  of  election  seems  to 
have  been  confined  to  wills,  and  in  that  application  it  originated 
in  English  jurisprudence.  One  of  the  earliest  instances  of  inter- 
ference by  a  court  of  equity  to  restrain  the  assertion  of  a  legal 
claim,  by  reason  of  its  inconsistency  with  the  intention  expressed 
or  implied  in  an  instrument  conferring  a  benefit  on  the  claimant, 
is  Lacy  v.  Anderson,  in  the  reign  of  Elizabeth.  "  The  suit  was  to 
stay  a  suit  at  law  in  a  writ  of  dower  made  by  the  defendant,  for 
that  the  defendant's  wife  had  certain  copyhold  lands  devised  unto 
her  in  lieu  of  her  thirds  at  law,  which  slie  accepted  of  and 
enjoyed  twenty  years,  and  yet  seeketh  now  to  recover  dower  of 
the  freehold  lands.  The  defendants  demurred,  because  copyhold 
lands  can  be  no  bar  of  dower.  But  the  court  thinks  it  no  con- 
science she  should  have  both  ;  therefore  ordered  to  answer.''' 
In  an  earlier  case  contained  in  the  san)e  collection,''  the  court 

*  Dig.,  lib.  30,  1.  84,  s.  6.  Choice  Cases  in  Cbaiiceiy,  pr.  155, 
»Dig.,  lib.  30.  1.  123,  pr.                        156. 

*  Lacy  V.    Anderson,    An.    24;    El.         ^  Rose  v.  Reynolds,  23  &  24  Eliz 

Choice  Cai=es,  147. 


Election. 


1161 


assumed  jurisdiction  upon  tlic  principle  that  dower  was  barred  in 
equity  hj  acceptance  of  a  benefit  designed  as  a  recompense, 
though  not  constituting  a  bar  at  law. 

The  apph'cation  of  the  general  rule  to  compel  election,  in  the 
instance  of  devises  to  the  testator's  widow,  between  her  claims  as 
devisee  and  as  doweress,  underwent  repeated  discussion  in  the 
well  known  case  of  Lawrence  v.  Lawrence,  the  record  of  which 
lies  dispersed  through  many  volumes.' 

§  1035.  The  general  i-ule  which  has  obtained  since  Noys  v. 
Mordaunt,"  is  clear,  that  w^here  a  man  does  by  will  more  than  he 
has  strictly  a  right  to  do,  and  gives  a  bounty  to  the  person  to 
whose  prejudice  that  is  done,  the  person  prejudiced  by  one  part 
shall  not  insist  upon  his  right,  and  at  the  same  time  upon  the 
bounty  by  the  will.' 

§  1036.  The  foundation  of  the  equitable  doctrine  of  election, 
is  the  intention,  explicit  or  presumed,  of  the  author  of  the  instru- 
ment to  which  it  is  applied,'  and  such  is  the  import  of  the  expres- 
sions by  which  it  is  described  as  jDroceeding,  sometimes  on  a 


'  Ld.  Raym.  438;  Lutw.  734;  2 
Vein.  365;  3  Freem.  234;  3  Bro.  P.  C. 
ed.  Toml.  484;  2  Freem.  235. 

»  2  Vern,  581. 

^Boiightonv.  Boughton,  2  Yes.  12; 
Kitson  V.  Kitson,  Prec.  in  Chan.  351 ; 
Streatfield  v.  Slreatfield,  Ca.  t.  Talb. 
176:  Forrester  v.  Cotton,  Amb.  388; 
1  Eden,  532;  a  deci^-^ion  contradicted 
by  later  authorities;  Jenkins  v.  Jen- 
kins, Belt's  Supt.  250;  Anon.  Gilb. 
Rep.  in  Eq.  15;  Cowper  v.  Scott,  3 
P.  Wms.  119;  Cookes  v.  Hellier,  2 
Ve.s.  234;  Morris  v.  Burroughs,  1  Atk. 
399:  Kirkham  Smith.  1  Ves.  258; 
Chetwynd  v.  Fleetwood,  1  Bro.  P.  C. 
300;  Unett  v.  Wilkes,  Amb.  430;  2 
Eden,  187;  Highway  v.  Banner,  1 
Bro.  C.  C.  584;  Lewis  v.  King,  2  Bro. 
C.  C.  600;  Hoare  v.  Barnes,  3  Bro. 
C.  C.  316;  Stratton  v.  Best,  1  Ves.  Jr. 
285;  Finch  v.  Finch,  4  Bro.  C.  C.  38; 
1  Ves.  Jr.  534;  Biglandv.  Huddleston, 

3  Bro.  C.  C.  285  ;   Blake  v.   Bunbury, 

4  Bio.    C.    C.    21;    1   Ves.   Jr.    514: 


Wilson  V.  Lord  John  Towushend,  2 
Ves.Jr.693;  Whistler  v.  Webster,2  Ves. 
Jr.  367;  Wilson  v.  Mount,  3  Ves.  191; 
Blount  V.  Bestland,  5  Ves.  515;  Butler 
V.  Maclean.  4  Ves.  531;  Webb  v.  Lord 
Shaftesbury,  7  Ves.  480;  Andrew  v. 
Trinity  Hall,  9  Ves.  533;  Stewart  v. 
Henry,  Vern.  &  S.  49;  Moore  v.  But- 
ler, 3  Sch.  &  Lef.  249;  Birmingham 
V.  Kirwin,  2  Sch.  &  Lef.  444;  Welby 
V.  Welby,  2  Ves.  &  B.  187;  Green  v. 
Greet),  2  Meri.  86;  Tibbits  v.Tibbits; 
2  Jleri.  96,  n.  ;  Raucliffe  v.  Parkyns, 
6  Dowe,  149:  Ayres  v.  Willis,  1  Ves. 
230;  Robinson  v.  Hardcastle,  2  Bro. 
C.  C.  344;  Crosbie  v.  Murray,  1  Ves. 
Jr.  555;  Frekc  v.  Barriugton,  3  Bro. 
C.  C.  274;  Rushoutv.  Rushout,  G  Bro. 
P.  C.  89;  S.  C,  2  Sch.  &  L.  267; 
Sheddon  v.  Goodrich,  8  Ves.  481; 
Rich  V.  Cockell,  9  Ves.  369. 

*  "  There  can  never  be  a  case  of 
election,  but  upon  a  presumed  inten- 
tion of  the  testator;"  Eyre,  C.  in  Cros- 
bie V.  Murray,  1  Ves.  Jr.  557. 


116*2  The  Law  uf  Estoppel. 

tacit,'  implied,'  or  constructive'  condition,*  sometimes  on  equity.* 
From  this  principle  the  whole  doctrine,  with  its  distinctions  and 
exceptions,  is  deduced."  The  intention  of  the  author  of  the  deed 
(for  it  is  established  that  the  doctrine  of  election  extends  to  deeds),^ 
or  will,  to  dispose  of  property  which  is  not  his,  must  be  mani- 
fest,* not  conjectural.*  It  is  not  necessary  that  the  intention  be 
expresslj'  declared  ;  it  may  be  gathered  from  the  whole  of  the 
instrument.'" 

§  1037.  The  election  may  be  made  impliedly  as  well  as 
expressl}'',  and  whether  there  has  been  ai>  acceptance  may  be 
determined  by  the  circumstances  of  the  case.  Acts  of  owner- 
ship, lapse  of  time,  ability  to  restore  others  to  the  same  situation 
as  if  there  had  been  no  election,  are  some  of  the  indicia  of  accept- 
ance." Thus  a  devisee,  by  proving  the  will,  by  accepting  the 
position  of  executor,  by  giving  bond,  and  by  continuing  to 
occupy  the  real  estate  left  by  the  deceased,  adopts,  ratifies  and 
confirms  the  will,  and  becomes  bound  to  execute  it  according 
to  its  terms  ;  and  he  and  all  persons  claiming  under  him  are 
estopped  from  setting  up  any  claim  or  right  which  would  defeat 
it."*  When  election  has  once  been  made,  and  thereby  an  estate 
vests  in  a  debtor,  the  latter  can  no  more  defeat  the  right  of  his 
creditors  to  subject  that  estate  to  their  claims,  by  a  dischiimer  of 

'  StreatfieUl  V.  Strcatficld,  Ca.  temp.  300;  Moore  v.  Butler,  2  Sch.   &   Lef. 

Talb.  183;  Frank  v.    Lady  Standish,  249;  Birmingham  v.  Kirwan,  2  Sell. 

15  Yes.  392,  it.  &  Lef.  266;  Green   v.  Green,  2   Meri. 

"Noys  V.  Mordaunt,  2  Vern.    582;  86. 

Broome      v.     Monck,    10    Ves.    609;  « Forrester  v.    Cotton,  Amb.    388; 

Thellusson  v.  Woodford,  13  Ves.  220;  1  Eden,  532;  Judd   v.   Pratt,  13  Ves. 

Bor   V.  Bor,    3  Bro.  P.   C.  ed.  Toml.  168;  15   Ves.  390:  Penn   v.    Guggen- 

177.  lieimer,    76    Va.    839;    Dasbwood  v. 

3  Jones  V.  Tinberville,  2  Ves.  14.  Peyton,  18  Ves.  27. 

*  Forrester   v.  Cotton,  1   Eden,  536.  »  Blake  v.  Bunbury,   4  Bro.    C.  C. 
5  Boyle  V. Bishop,  &c.,l Ves. 306;  Bor  21;    1  Ves.   Jr.   514;  Read  v.  Crop,  1 

V.  Bor,  3  Bro.  P.   C.   ed.    Toml.   177;  Bro.  C.  C.  492. 

Morris  V.   Burrows,  2  xVtk.  629;  Heale  '"Penn  v.  Guggenheimer,    76    Va. 

V.  Greenbank,  3  Atk.  715.  839:  Dillon  v.  Parker,  1  Sw.  402. 

*  Dillon  V.  Parker,  1  Swanst.  394.  "  Penn    v.  Guggenheimer,    76    Va. 
'Llewellyn  v.    Mackworth,  3   Bar-  839;  Johnson  v.  Duncan,  67  Ala.  61; 

nard,  445;  Freke  v.  Lord  Barrington,  Pientice  v.  Johnson,  79  N.  Y.  47^ 
3  Bro.  C.  C.  274;  Bigland  v.  Huddles  '=  Smith    v.  Wells,    134    Mass.    13; 

ton,  3  Bro.    C.  C.  285,  n.  ;   Chetwynd  Hyde  v.  Baldwin,  17  Pick.  303;  Smith 

V.  Fleetwood,  1   Bro.  P.  C.  ed.  Toml.  v.  Smith,  14  Gray,  532. 


Election.  1163 

title,  than  by  a  voliiutarj  deed  of  gift  or  assignment ;  and  those 
creditors  may  resort  to  a  court  of  equity  for  tlie  purj^ose.' 

§  1038.  This  doctrine  of  election  is  founded  upon  principles 
of  universal  equity  which  prevail  in  the  laws  of  all  coutries,  and 
the  principle  of  it  is  clear ;  not  merely  as  an  abstract  theory,  but 
pursued  to  practical  consequences.  It  appears  to  have  been 
originally  derived  from  the  civil  law,  in  which  are  found  the 
following  passages,  "  Quando  cesset  honorum  possessio  §  1  . 
Prima  causa :  Si  jyatronus'^  eui  contra  tabulus  possessio  coni- 
petehat,  judicium  defuncti  agiioverit.  Patronus  patronique  lib- 
erie si  secundum  volmtateur  mortui  liherti  Jiaereditathn  adieruit 
legatumive  aut  fidei  commissum  peters  malueruit  /  ad  contra, 
taltdas  honorum.  possessionum  non  admittuntur  I.  6  %fin  ulp  lib 
43  ad  sabin.  Nam  ohsurdum  mdetur  licere  eidem  partim  com- 
probare  judicium  defuncti,  partim,  evertere,  I.  7,  Gai  lib.  15  ad 
ed  ProvincP  "  Then  follows  several  illustrations  of  the  doctrine, 
while  the  foregoing  rules  are  applicable  to  wills  only,  yet  furnishes 
the  principle  of  the  doctrine  in  its  full  extent  against  whatever 
instruments  it  is  brought  to  bear.  The  condition  in  which  this 
doctrine  existed  in  the  civil  law  has  been  materially  modified  and 
enlarged  upon  by  courts  of  equity,  and  it  has  been  reduced  to  a 
well  established  system,  and  one  of  frequent  use.  This  doctrine 
is  a  principle  of  law  as  well  as  equity,^  while  more  frequent  in 
equity  than  of  law,  is  often  recognized  by  the  latter.  You  can- 
not act,  you  cannot  come  forth  to  a  court  of  justice  claiming 
repugnant  rights ;  upon  this  principle,  it  is  that  a  court  will  not 
allow  a  tenant  to  set  up  a  title  against  his  landlord." 

§  1039.  A  man  who  has  his  option  whether  he  will  aflSrm  a 
particuhir  act  or  contract,  must  elect  either  to  affirm  or  disaffirn  it 
altogether  ;  he  cannot  adopt  that  part  which  is  for  his  own  benefit 
and  reject  the  rest.  One  cannot  blow  hot  and  cold,  this  is  a  trite 
expression  of  the  maxim  allegans  contraria  non  est  audiendus, 
he  is  not  to  be  heard  wlio  alleges  things  contradictory  to  each 
other.     This  fundamental  is  of  wide  application  in  the  law  of 

'  Pennv.  Guggenheimer,  76  Va.  839.      Cowp.  597;  Doe  v.  Cavendish,  4  T.  R. 
"^  Wilson    V.    Lord    Townshend,    2     741, 
Ves.    Jr.   096;    Goodtitle    v.  Bailey, 


1164 


The   Law  of  Estoppel. 


equitable  estoppel.'     lie  cannot  treat  a  contract  as  subsisting,  and 
afterwards  avoid  it.' 


*  Keyser  v.  Simmons,  16  Ala.  268; 
Blair  v.  Wait,  69  N.  Y.  113;  Woods 
V.  Rocchi,  32  La.  Ann.  210;  Green's 
Appeal,  97  Pa.  St.  342;  Winton  v.  Lit- 
tle, 94  Pa.  St.  64:  Moale  v.  Baltimore, 
5()]M(1.  496;  Hart  v.  Iliiguet,  33  La. 
Ann.  ;362;  K.  R.  Co.  v.  Cliambcrlain, 
84  111.  333;  Stewart  v.  In.s.  Co.,  9 
Lea,  104;  Aiusworth  v.  Miller,  20  Kas. 
220;  White  v.  Smith,  37  Mich.  291 ; 
Louks  V.  Kenniston,  50  Vt.  116;  Loan 
Co.  V.  King,  58  Iowa,  598;  (Joodwia 
V.  Keney,  49  Conn.  563;  Browtr  v. 
Callender,  105  111.  88;  Ass'n  v.  Beck, 
77  Ind.  203;  S.  C,  40  Am.  R.  295; 
AYashabaugh  v.  Stauffer,  81  Pa.  St. 
97;  Mowry's  Appeal,  94  Pa.  St.  376; 
Dock  Co.  V.  Trustees,  35  N.  J.  E.  181; 
Nelson  V.  Claybrooke,  4  Lea,  6S7; 
Tetter's  Appeal,  99  Pa.  St.  52;   Pack- 


ing Co.  V.  Tilton.  87  111.  547;  Androw.s 
V.  Ins.  Co.,  18  Hun,  163;  Cro.^s  v. 
Levy,  57  Miss.  634;  White  v.  State,  69 
Ind.  273;  Byrne  v.  Bank,  31  Lii.  Ann. 
81 ;  Dii-cctors  v.  Hernandez,  31  La. 
Ann.  l.")S:  Vanneter  v.  Crossir.an,  42 
Mich.  4()5;  Power  v.  Thorp.  92  Pa.  St. 
346;  Brady  v.  Seligraan,  75  Mo.  31; 
Miller  v.  Aj'ers,  59  Iowa,  424;  Fitz- 
patrick  v.  Apperson,  79  Kj'.  272;  Kile 
V.  Yellowhead.  80  111.  208;  Hartshorn 
V.  Potroff,  89  111.  509;  3Iathew  v. 
Knox,  34  La.  Ann.  410;  Test  v.  Larsh, 
76  Ind.  452;  Dows  v.  Napcr,  91  111. 
44;  Ins.  Co.  v.  Hauck,  71  Mo.  465; 
Gregory  v.  Patchett,  33  Beav.  602; 
Mathewman's  Case,  L.  R.  3  Eq.  781; 
Eberts  v.  Selover,  44  Mich.  512;  S.  C, 
38  Am.  R.  278;  Bank,  in  re,  22  X.  Y. 
9;  Baukv.  Case,  99  U.  S.  628;   Kim- 


«  Smith  V.  Hodson,  4  T.  R.  211; 
Hitchin  v.  Campbell,  2  Black,  827; 
King  V.  Leith,  2  T.  R.  141:  Wilson  v. 
Poulter,  2  Str.  859;  Billon  v.  Hyde,  1 
Ark.  128;  Hovil  v.  Pack.  7  East,  164; 
Ferguson  v.  Carrington,  9  B.  &  C.  59; 
Selway  v.  Fogg,  5  M.  &  W.  83;  Rus- 
sell V.  Bell,  8  M.  &  W.  277;  Campl)ell 
V.  Fleraming,  1  A.  &  E.  40;  Richard- 
son V.  Dunu,  2  Q.  B.  218;  Jordan  v. 
Norton,  4  M.  &  W.  155;  Brewer  v. 
Sparrow,  7  B.  &  C.  310;  Burns  v. 
Morris,  Tyrwh.  486;  Burcb  v.  Wright, 
1  T.  H.  378  ;  Keech  v.  Hall,  Dougl. 
21;  Marshall  v.  Nav.  Co..  L.  R.  7 
Q.  B.  16!!;  Bennett  v.  Wade,  1  Dick. 
84;  Bellamy  v.  Sabine,  2  Ph  450; 
Han.soM  v.  Keating.  4  Hare,  1;  Great, 
&c.  Co.  V.  Maguay,  25  Beav.  594; 
Bank  V.  Groves,  12  How.  51;  Kinney- 
V.  Kieman,  2  Laus.  492;  Voorhies  v. 
Earl,  2  Hill,  288;  .lenkins  v.  Simpson, 
14  Me.  364;  Fay  v.  Oliver,  20  Vt  118; 
Jenuin-rs  v.  Gaze,  13  111.  610;  Mussou 


V.  Bo  vet,  1  Denio,  69;  Clarkson  v. 
Mitchell,  3  E.  D.  Smith.  269;  Jewett 
T.  Petit,  4  Mich.  508;  Kimball  v.  Cun- 
ningham, 4  Mass.  504;  Stevens  v. 
Hyde,  32  Barb.  171;  :,!(  Guire  v.  Cal- 
lahan, 19  Ind.  128 ;  Bronson  v. 
Wimau,  10  Barb.  406;  [Mickle  v. 
Miles,  1  Grant  Cas.  320:  Backenstoes 
v.  Stabler,  33  Pa.  St.  251;  Mcyseni)urg 
v.  Schlieper,  48  Mo.  426;  Peo]-)le  v. 
Stephens,  71  N.  Y.  527;  R.  R.  Co.  v. 
Rowe,  24  Wend.  24:  Vernal  v.  Vernal, 
63  N.  Y.  45:  Bank  v.  Carver,  31  Barb. 
250;  Lloyd  v.  Brewster,  4  Paige.  537; 
Sweetmiui  v.  Prince,  26  N.  Y.  227; 
Reed  v.  Randall,  29  X.  Y.  358;  Gnr- 
ney  v.  R.  R.,  58  X.  Y.  358;  Oshornc 
Y.  Gantz,  (>0  X.  Y.  540:  G.  M.  Co.  v. 
Allen,  53  X.  Y.  515;  Clarke  v.  White, 
12  Pet.  178;  Lake  v.  Dawson,  17  Pick. 
284;  Kellogg  v.  Turple,  93  ill.  205; 
Whipple  v.  AVhitman,  13  R.  I.  512; 
Bank  v.  Hollander,  35  La.  Ann.  582; 
Smith  V.  Pettce.  70  X.  Y.  13. 


Election. 


1165 


§  1040.  Among  the  rules  which  have  become  axiomatic  is  one 
that  a  party  must  be  consistent  and  not  contradictory  in  tlie  posi- 
tions which  he  talces,     Jn  the  hmguage  of  Lord  Kenyon,  he  must 


ball  V.  Lincoln.  7   111.  App.  470;   Ho 
bart  V,  Johnson,  8  Fed.  R.  493;   Kirk 

V  Hamilton,  103  U.  S,  68;   Cheatham 

V  Wieber,  1  Dak.  T.  335;  Hart  v, 
Giles,  67  Mo.  175;  Youngbloodv.  Cun- 
ningham. 38  Ark.  572;  Kirkpatrick  v. 
Brown,  59  Ga.  450;  Montague  v.  Weil, 
30  La.  Ann.  50;  Koon  v.  Suodgrass,  8 
W.  Va.  320;  Bonner  v.  Spring  Co., 
44  N.  Y.  Super.  454;  Gallagher,  in  re, 
16  Blatchf.  410;  Betts  v.  Wurth,  32 
N  J.  E.  82:  Payne  v.  Payne,  5  Mo. 
App.  188;  Rabun  v.  Pabun,  61  Ga. 
647;  Redman  v.  Graham,  80  N.  C. 
231;  Siraplot  v.  Dubuque,  56  Iowa, 
639;  Rich  V.  Savage,  12  Neb.  413;  Mc- 
Donough  V.  Ilanii'an,  7  111.  App.  50; 
Lacoste"s  Estate,  Myr.  Prob.  (Cal.)  67; 
Garrett  v.  Mulligan,  10  Phila.  339; 
Quigley  v.  Comm'rs,  24  Kas.  293; 
Dillon  V.  Dillon,  60  Ga.  204:  Robin- 
son V.  Kitchin,  21  Beav.  365;  Green 
V.  Weaver,  1  Sim.  404;  Williams  v. 
Holmes,  1  Pennypacker,  441;  Branch 
V.  Jessup,  106  U.  S.  468;  Clermontels 
Estate,  1  Phila.  139;  Whitney  v.  Rob 
inson,  53  Wis.  309;  Goodman  v.  Win- 
ter, 64  Ala.  410;  Downey  v.  O'Donnell, 
82  111.  559;  Welch  v.  Shearer,  93  111. 
64;  Talcott  V.  Brackett,  5  111.  App. 
60;  Davis  v.  Williams,  49  Iowa,  83; 
Crequc  v.  Sears,  17  Hun,  123;  Dolde 
V.  U.  S  ,  13  Cl.  of  Clms.  97;  Neal  v. 
Field,  68  Ga.  504;  Love  v.  Rockwell, 
1  Wis.  382;  Tracy  v.  Cover,  28  Ohio 
St.  61 ;  Cave  v.  Mills,  7  H.  &  N.  513; 
Bailey  v.  Stone,  41  How.  Pr.  349; 
Glackin  v.  Zeller,  52  Barb.  147;  Kirk 
V.  Blasstieid,  6  T.  &  C.  509;  Bradner 
V.  Howard,  75  N.  Y.  417;  Robinson  v. 
Bank,  18  Ga.  65;  Ferguson  v.  Lau- 
drau,  5  Bush,  230;  Dardin  v.  Harrill, 
10  Lea,  421;  Wright  v.  Langenour,  55 
Cal.  280;  Ryan  v.  Maxey,  43  Tex.  192; 


Cravens  v.  Booth,  8  Tex.  243;  Grande 
V.  Chaues,  15  Tex.  550;  Power  v. 
Thorp,  92  Pa.  St.  346;  Flucker's  Suc- 
cession, 32  La.  Ann.  292;  Bxmtyn  v. 
Holmes,  9  Lea,  319;  Knaggs  v.  Mas- 
tin,  9  Kas.  532;  Van  Hasselt  v.  Sack. 
13  Moo.  P.  C.  C.  185;  Bobbins  v. 
Mylin,  34  K  J.  E.  205;  Ireland  v. 
Nichols,  46  111.  413;  Shattuck  v.  Love- 
joy,  8  Gray,  204;  Webster  v.  Nichols, 
104  111.  160;  Frick  v.  Trustees,  99  111. 
167;  Kennick  v.  Eggleston,  56  Iowa, 
128;  S.  C,  41  Am.  R.  90;  Ry.  Co.  v. 
Ry.  Co.,  87  111.  317;  Jeffries  v.  Clark, 
23  Kans.  448;  Payment  v.  Church,  38 
Mich.  776;  Robeit.son  v.  Bradford,  73 
Ala.  116;  Morey  v.  Pierce,  14111.  App. 
91;  R.  R.  Co.  V.  Mead,  63  Cal.  112; 
Gill  V.  Russel,  26  Minn.  302;  Apple- 
ton  V.  Ins.  Co.  59  N.  H.  541;  S.  C,  47 
Am.  R.  220  ;  AVakefi(dd  v.  Ins.  Co. 
50  Wis.  532;  Baird  v.  New  York,  96 
N.  Y.  567;  Brooks  v.  Brooks,  90  N. 
C.  142;  Tunnel  v.  Burton,  4  Del.  Ch. 
382;  Stevens  v.  Brown,  60  Iowa,  403; 
City  Council  v.  Caulfield,  19  S.  C.  201; 
Gilmore  v.  Devlin,  4  Me  Arthur,  306; 
Folger  V.  Palmer,  35  I^a.  Ann.  743; 
Plummer  v.  Bank,  90  Ind.  386;  Genoa 
V.  Van  Alstyue,  108  111.  55  ;  Manf'g 
Co.  V.  Funge,  109  U,  S.  651;  R.  R. 
Co.  V.  R.  R.  Co.,  19  F.  R.  804;  Land 
Co.  V.  Tiltou,  19  F.  R.  73:  McAlpine 
Y.  Hedges,  21  F.  R.  089  ;  Norris  v. 
Ins.  Co.,  51  Mich.  651;  Lane  v.  Black, 
21  W.  Va.  617;  Dennis  v.  Stoughton, 
55  Vt.  371;  Mackey  v.  Swartz,  60 
Iowa,  710;  Philleo  v.  Manf'g  Co.,  15 
Neb.  625;  Comstock  v.  Sanger,  51 
Mich.  497;  Weybrich  v.  Harris,  31 
Kas.  92;  Womble  v.  Leach,  83  N.  C. 
84;  AVilson  v.  Hicks,  40  (Jiiio  St.  418; 
Bailey  v.  Hewey,  135  iMass.  142;  Per- 
kins V.  Jones,  62  Iowa,  345;  Nichols 


1166 


The  Law  of  Estoppel. 


not  "  blow  hot  and  cold  "  at  the  same  time.  And  one  of  the  most 
important  applications  of  the  rule  is,  where  a  party  endeavors  to 
establish  a  right  or  title  in  himself  under  one  provision  or  implica- 
tion of  a  deed  or  other  instrument  by  ignoring,  or  contradicting 
another  provision  or  implication,  which  is  destructive  or  fatally 
repugnant.  Now,  according  to  the  reason  of  the  rule,  which 
applies. as  well  to  deeds  as  to  wills,  a  person  cannot  claim  under 
the  instrument  without  confirming  it.  lie  must  found  his  claim 
on  the  whole,  and  cannot  adopt  that  feature  or  operation,  which 
makes  in  his  favor  and  at  the  same  time  repudiate,  or  contradict 
another  feature  or  operation  which  is  counter  or  adverse  to  it.' 
If  a  voidable  contract,  or  other  transaction  is  voluntarily  acted  on 
with  a  knowledge  of  all  the  facts,  in  the  hope  that  it  may  turn 
out  to  the  advantage  of  a  party  who  might  have  avoided  it,  he 
cannot  avoid  it,  when  after  abiding  that  event,  it  has  turned  out 
to  his  disadvantage.^  So  an  elector,  who  has  himself  been  instru- 
mental in  electing  a  candidate,  will  not  be  allowed  afterwards  to 


V.  Gage,  lOOreg.  82;  Porter  v.  Worm- 
ser,  94  N.  Y.  431;  R.  R.  Co.  v.  Hitch- 
cock, 37  N.  J.  E.  549;  Cranston  v. 
Smith,  47  Mich.  G47;  Hahn  v.  Kelly, 
62  Cal.  150;  Dorris  v.  Smith,  7  Oreg. 
267. 

'  Wright  V.  Rutter.  2  Ves.  Jr.  G73; 
Holt  V.  Rice,  54  N.  H.  398;  Hyde  v. 
B:i!dwin,  17  Pick.  308;  Moore  v. 
Butier,  2Sch.  &  L.  249;  Hapgood  v. 
Haughtou,  22  Pick.  483;  Mayuard  v. 
Maynard,  4  Edw.  Ch.  711;  Hamblett 
V.  Hamblett,  6  N.  H.  383;  Monison  v. 
Bowman.  29  Cal.  337;  Claggett  v. 
Richards,  45  N.  H.  303;  Thompson 
V.  Thompson,  19  Me.  235;  Haven  v. 
Foster,  9  Pick.  112;  Crosby  v.  Chase, 
17  Me.  869;  Ladd  v.  Kenney,  2  N.  H. 
340;  Smitii  v.  Smith,  14  Gray.  532; 
Waters  v.  Travis,  9  Johns.  464;  Board 
V.  Board,  L.  R.  9  Q.  B.  48;  Lawrence 
V.  Ins.  Co.,  11  Johns.  241;  The  Water 
Witch,  1  Black,  494;  Reed  v.  Dicker- 
man,  12  Pick.  146;  Cowell  v.  Springs 
Co.,  100  U.  S.  55;  Co.  Litt.  145; 
Scholey  v.  Rew,  23  Wall.  331 ;  Tuite 
V.    Stevens,   98  Mass.   305;    Penu  v. 


Guggenheimer,  76  Va.  839;  Gregory 
V.  Gates,  30  Gratt.  83  ;  Lee  v.  Lee,  L. 
R.  4Ch.  D.  175:  Kellogg  v.  Turpin, 
93  111.  265;  Codrington  v.  Lindsay, 
L.  R.  8  Ch.  App.  578;  Whipple  v. 
Whitman,  13  R.  L  513;  Caullield  v. 
Sullivan,  85  N.  Y.  153;  Aiusworth  v. 
Miller,  20  Kas.  220;  Swanson  v. 
Parkington,  7  Heisk.  612;  Ry.  Co.  v. 
Ry.  Co.,  87  111.  317;  Emmons  v.  Mil- 
waukee, 32  Wis.  434;  Sinclair  v.  Jack- 
son. 8  Cow  543;  Jackson  v.  Ireland, 
3  Wend.  99 ;  Overbach  v.  Heermance, 
Hopk.  337;  Hart  v.  Johnson,  6  Ohio, 
87;  May  v.  Tillman,  1  Mich.  262;  Bank 
V.  Bronson,  14  Mich.  361;  Botsford  v. 
Murphy,  47  Mich.  537;  Jacobs  v. 
Miller,  50  Mich.  126. 

«  Ormes  v.  Beadel,  2  D.  F.  &  J. 
336:  R.  R.  Co.  v.  Rowe,  24  Wend.  74; 
BIydenburgh  v.  Welch,  1  Bald.  331; 
Bunce  v.  Davenport,  3  Kej'es,  472; 
Collyer  v.  Thompson,  4  Mon.  81; 
De  Armand  v.  Phillips,  AYalk.  Ch. 
186;  Edwards  v.  Rol)erts,  15  Miss.  544; 
Finley  v.  Lynch,  2  Bibb,  560;  Bronson 
v.  Wiman,  10  Barb.  406. 


Electioit.  1167 

complain  of  the  election  of  that  candidate.'  dpon  similar  prin- 
ciples it  has  been  held,  that  a  councillor  who  is  instrumental  in 
the  election  of  a  particular  person  as  Reeve  or  Deputy  Reeve, 
cannot  afterwards  be  allowed  to  move  against  the  person  so 
elected  Reeve  or  Deputy  Reeve." 

§  lOil.  Where  a  party  whose  land  is  taken  by  a  railroad  com- 
pany, under  the  right  of  eminent  domain,  and  in  whose  favor 
damages  are  assessed  and  deposited  to  his  credit,  who  knows  of 
irregularities  in  the  proceeding,  and  receives  the  money  without 
objection,  and  sees  the  company  construct  its  road  over  his  land, 
cannot  thereafter  maintain  any  proceedings  on  account  of  such 
irregularities,  as  by  accepting  the  damages  he  waives  all  right  to 
object  to  the  proceedings.  He  cannot  have  the  money  and  liti- 
gate with  the  company  as  to  their  right  to  occupy  the  land.^  So, 
where  a  party  sells  land  and  receives  the  purchase  money  there- 
for, and  afterwards  attaches  the  land  in  an  action  against  a  former 
grantee  of  his,  under  an  unreco^'ded  deed  ;  and  the  purchaser, 
from  whom  the  consideration  has  been  received,  interpleads  and 
claims  title.  The  plaintiff  is  estopped  from  denying  such  title 
even  by  showing  that  such  grantee  had  notice  at  the  time  of  his 
purchase  of  the  prior  unrecorded  deed.*  So,  where  one  who  has 
contracted  to  complete  a  building  with  knowledge  of  a  mortgage 
thereon,  given  for  the  purpose  of  obtaining  money  for  that  pur- 
pose, and  who  receives  a  portion  of  the  money  so  raised,  on  his 
contract,  is  estopped  from  claiming  a  priority  of  lien  as  against 
such  mortgage."  So,  where  a  party  accepts  an  insurance  policy 
with  certain  conditions  incorporated  therein,  is  estopped  from 
denying  their  validity."  An  actual  acceptance  establishes  a  valid 
contract.'     So,  where  two  persons  contract  in  view  of  an  existing 

■'  Queen   v.  Watson.  1  U.  C.  L.  .J.  v.    Blackberry,    29    111.    137;   School 

48;    Queen   v.  Ponton,  2   U.  C.  P.  R.  Dist.    v.  Copelaud,  2  Gray,  411;  Kile 

18  ;  Queen  v.  Parker,  2  U.  C.  C.  P.  15;  v.  Yellowhead,  80  111.  208. 

Kelly  V.    Macarow.    14  U.   0.  C.  P.  ■»  Needham  v.  Clary,  62  111.  344. 

457;  Queen  v.  Bell,  1  U.  C.  L.  J.  N.  »  Wroten  v.  Armat,  31  Gratt.  228. 

S.    130;  Regina  v.  Cusac,  0  U.  C.  P.  e  Ilygum  v.  Ins.  Co.,  11  Iowa,  21. 

R.  303.  '  Sliinley  v.  Houston,  1    N.  Y.  261; 

2  Queen    v.    Parker,    2    U.    C.    C.  Stone  v.  Browning,  68  N.Y.  598;  Caul- 

P.  15.  kins  V.  Ilellman,  47  N.  Y.  449;   Fitz- 

*  Hitchcock  V.  R.  R.  Co.,   25  Conn.  simmons   v.  Woodruff,  74  N.  Y.  621; 

516;  Burns  v.  R.  R.  Co.,  9  Wis.  450;  Weist  v.  Grant,  71  Pa.  St.  95. 
Burnes  v.  Dodge,  9  Wis.  458;   Town 


1168  The    Law  of  Estoppel. 

ordinance  on  the  subject,  which'  both  recognize  as  valid  and  bind- 
ing, neither  can  afterwards  question  its  validity.  So,  where  a 
party  executes  a  chattel  mortgage  on  ]>roperty,  which  like  engines, 
machinery,  &c.,  woukl  become  part  of  the  realty  by  being  annexed 
thereto  ;  by  thus  treating  it  as  personal  property,  he  is  precluded 
fi'om  thereafter  claiming  it  to  be  realty  as  against  the  parties  who 
have  acted  on  such  recognition.'  So  a  party  who  induces  the 
owner  of  land  to  convey  the  same  in  trust,  by  threatening  to  have 
a  conservator  of  the  grantor  appointed,  and  instituting  proceedings 
to  have  the  grantor  adjudged  insane,  and  dismisses  such  proceed- 
ing nj)on  the  executing  of  such  deed,  will  be  estopped  from  after- 
wards avoiding  the  deed  on  the  ground  that  its  execution  was  pro- 
cured by  duress.' 

§  1012.  Wliere  a  man  has  enjoyed  a  homestead  and  an  exemp- 
tion of  personalty  for  nine  or  ten  years,  he,  and  a  wife  whom  he 
subsequently  married,  are  estopped  from  claiming  that  his 
application  failed  to  set  forth  jurisdictional  facts,  in  order  to 
obtain  a  second  homestead  and  exemption."  In  an  action  by  A. 
against  B.  to  recover  an  alleged  debt,  A.'s  allegation  in  previous 
suits  that  the  consideration  of  the  debt  inured  to  the  benefit  of 
C,  estops  A.  from  alleging  and  proving  that  it  inured  to  the 
benefit  of  B.^  By  an  agreement  for  composition,  the  bankrupt 
was  to  assign  all  his  interest  in  certain  lands  to  A.,  a  mortgagee 
thereof,  who,  by  the  understanding  of  all  parties,  was  to  ]iay  off 
an  earlier  mortgage  on  the  lands,  which  was  regarded  as  a  secured 
debt  by  all  except  A.,  who  knew  that  it  was  invalid  as  to  a  part 
of  the  debt  it  v.-as  given  to  secure,  and  intended  to  contest  it,  but 
who  gave  no  information  of  such  knowledge  and  intention  to  the 
parties  interested  :  lleld^  that  A.  was  estopped  from  denying  his 
obligation  to   pay  off  said   mortgage."     One   having   a    right  to 

'  Moale   V.   Baltimore,  06  Md.  496;  rane  v.   Flint,  .57  X.  H.  514;   Blanche 

White  v.  Smith,  37  Mich.  291.  v.  Rogers,  26  N.  J.  E.  563.   See  llerm. 

^  Test   V.    Robinson,    20    Ind.  251 ;  Real  Estate  iMoi  tgages.  §  390,  el  seq. 

Salloii  V.  Jones,  37  111.  95;   Eaves  v.  for  additional  cases  on  this  subject. 

Esfes,  10  Kas.  314;  Gallagher,  in  re,  »  Brower  v.  Callender,  105  111.  88. 

16  Blatch.  410  ;   Haven  v.  Emory,  33  *  Torrance  v.  Bt)yd,  63  Ga.  22. 

N.  H.  66;   Dame  v.   Dame.  38  N.  H.  ^  Dunham  v.  Williams,  32  La.  Ann. 

429;   Hunt  V.  Iron  Co.,  97  Mass.  279;  962. 

Wagner  v.  Railroad.  22  Ohio  St.  563;  ^  Bank  v.  Hammond,  51  Vt.  203. 
Hines  v.   Ament,  43  Mo.  298;   Coch- 


Electio]^.  1169 

redeem,  and  assuring  a  proposed  purchaser  of  the  fee  that  he  will 
not  exercise  it,  whereby  the  purchaser  is  induced  to  buy,  is  estop- 
ped from  afterwards  enforcing  it  against  the  purchaser  or  his 
assignees.'  So  also  is  one  purchasing  the  right  to  redeem,  estop- 
ped, if  he  has  notice  of  the  facts.  Where  an  attaching  creditor 
lias  induced  another  creditor  to  levy  an  attachment  which  after- 
wards became  a  prior  lien  by  reason  of  the  discontinuance  of  the 
first  suit,  the  former  is  estopped,  in  so  far  as  the  value  of  the 
property  may  be  needed  for  satisfying  the  latter  claim,  from 
asserting  that  the  ownership  of  the  property  was  in  himself.^  A 
liusband  made  oath  that  his  deceased  wife  left  an  estate,  was 
appointed  her  administrator,  and  filed  an  account  in  which  certain 
money  was  returned  as  her  whole  estate.  He  was  estopped,  as 
against  a  creditor  of  the  estate,  to  claim  the  money  as  his  own 
property.'  Where  the  vendor  tenders  a  deed  to  tlie  vendee,  and 
the  latter  makes  no  objection  to  it,  but  places  his  refusal  to  receive 
it  on  the  sole  ground  that  he  has  not  the  money  to  pay  for  the 
property,  he  cannot,  when  sued  on  his  agreement  to  purchase, 
defeat  the  action  by  showing  that  the  land  was  not  free  fi'om 
incumbrance."  Where  a  grantee,  as  additional  security  to  D.,  the 
grantor,  executed  a  bond  to  make  $4,000  worth  of  improvements 
within  a  specified  time,  but  was  afterwards  advised  by  D.  not  to 
make  them  becai^se  he  could  never  pay  for  the  land  ;  D.  was 
estopped  to  maintain  suit  on  the  bond/  A  white  man  married  a 
woman  without  any  license  or  the  usual  ceremony,  and  reared  a 
family  of  children  by  her  (although  possibly,  there  was  negro 
blood  in  hei'),  he  was  estopped  to  deny  her  right  to  maintain  a 
bill  for  pentianent  alimony  for  herself  and  minor  children  ;  and 
this,  where  he  had  procured  an  act  of  the  legislature  declaring 
her  entitled  to  citizenship.^  A  party  who  assumes  to  act  as  a 
broker  or  agent,  is  estopped  from  denying  it  as  against  the  party 
employing  him.' 

§  1043.  Where  a  party  to  a  contract,  which  might  be  impugned 
on  the  ground  of  fraud,  knowing  of  the  fraud,  nevertheless  elects 

'  Southard  v.  Sutton.  68  Me.  575.  *  Ashbaugh  v.  Murphy,  90  111.  183. 

2  Vannetter  v.  Grossman,  42  Mich.  «  Davis  v.  Williams,  49  Iowa,  83. 
465.  «  Dillon  v.  Dillon.  GO  Ga.  204. 

3  Garvey  v.  McCue,  3  Redf.  (N.  Y.)         '  Robinson    v.    Kitchin,    21     Beav. 
313.  365;  Green  v.  Weaver,  1  Sim.  404. 

Vol.  I. — 74 


1170  The  Law  of  Estoppel. 

to  treat  the  transaction  as  a  binding  contract,  lie  thereby  loses  his 
right  of  rescinding  it ;  for  fraud  only  gives  a  right  to  avoid  or 
rescind  a  contract.  A  party  cannot  retain  the  ]>enelit  of  a  trans- 
action and  at  the  same  time  repudiate  it  as  null  and  void.'  A 
person  who  is  induced  to  part  witli  his  property  on  a  fraudulent 
contract,  may,  on  discovering  the  fraud,  avoid  the  contract  and 
claim  a  return  for  what  he  had  advanced  upon  it.  Fraud  destroys 
the  contract  ah  initio,  and  a  fraudulent  purchaser  has  no  title. 
But  if  the  party  defrauded  would  disaffirm  the  contract  he  must 
do  so  at  the  earliest  practicable  moment  after  discovery  of  the 
cheat.  That  is  the  time  to  make  his  election  and  it  must  be  done 
promptly  and  unreservedly.  He  must  not  hesitate  ;  nor  can  he 
be  allowed  to  deal  with  the  subject  matter  of  the  contract  as  his 
own  and  afterwards  rescind  it.^  Thus,  where  a  party  liaving  full 
knowledge  of  the  facts,  nevertheless  enters  into  new  stipulations 
with  his  vendor,  by  which  he  obtains  an  extension  of  time  for 
the  payment  of  the  purchase  money,  he  thereby  ratifies  the  trans- 
action, waives  the  objection,  and  cannot  afterwards  take  adrantage 
of  it  when  sued  on  the  contract.'  So,  where  a  party  had  the  use 
of  property  for  nearly  a  year  without  making  any  claim  for 
damages  for  breach  of  warranty  and  arranged  for  securing  his 
notes  given  for  the  purchase  money  he  was  estopped  from  setting 
up  any  claims  for  damages.*  So,  where  a  party  after  discovering 
that  a  sale  of  goods  which  he  had  nuide  was  obtained  by  fraud, 
brought  assumpsit  for  the  price  and  attached  the  goods  in  his 
hands.  Soon  after  another  creditor  of  the  purchaser  attached  the 
same  ffoods ;  after  both  suits  had  been  in  court   fur  more  than  a 

1  Jcffei-s   V.    Forbes,    28    Kas.    174;  v.   Wiman,    10   Barb.    406;   Frank  v. 

Tisdale    v.    Buckmore,    33    Me.    4G1;  Holhuider,  85  La.  Ann.  5«3. 

Bisby  V.  Ham.  47  JNle.  543;  Evans  v.  ^  Hall    v.    Fullerton,    69    111.    448; 

Gale,    17    N.    H.     573:     Nichols    v.  ]\Iasou  v.  Bovet,  1  Deuio,  69;  Byrue  v. 

Michaels,  23  N.  Y.  264;  Cobb  v.  Hat-  Bank,  31    La.  Ann.  81;   Willaiier   v. 

field,  46  N.  Y.  533;  .McDonald  V.  Neil-  Fellows,   48    Wis.    105;    Taynion    v. 

SOD,  2  Cow.  139;  Ford  v.  Harrington,  Mitchell,    1    Md.  Ch.  496;    Bower   v. 

16   N.    Y.    285;   Bamler   v.  Fults,  15  Metz,  54  Iowa,  394;  Cates  v.  Bales,  78 

Kas.   323;   Beekman   v.    Fletcher,    48  Ind.  285;  Dill  v.  Camp,  22  Ala.  249; 

Mich.  535;  Coffey  v.  Ins.  Co.,  10  Bis.  Clement  v.   Smith.   9  Gill,   156;   Me- 

3*54;  Chaffee  v.  K.  R.  Co..  55  Vt.  110;  Culloch  v.  Scott,  13  B.  Mon.  172. 

Schaffer  v.  Dietz,  83  N.  Y.  300;  Crus-  ^  Thweatt  v.  McLcod,  56  Ala.  375. 

selle  V.  RcinhardI,  68  Ga.  619:  Steven-  *  Abbott  v.  Johnson,  47  Wis.  239. 
son  V.  Nevvuham,  13  C.  B.  302 ;  Bronson 


Electiott.  1171 

year  the  vendor  became  satisfied  that  his  suit  could  not  be  main- 
tained because  prematurely  brought,  and  withdrew  it.  He  then 
demanded  the  goods  of  the  other  creditor  and  of  the  ofiicer  who 
held  them  under  the  other  attachment,  claiming  to  have  rescinded 
the  sale  on  account  of  the  fraud,  and  subsequently  brought  trover 
for  them  against  the  creditor.  The  vendor  by  bringing  and 
prosecuting  for  so  long  a  time  his  suit  for  the  price  of  the  goods, 
had  affirmed  the  sale,  and  the  mere  delay,  after  .knowledge  of  the 
fraud  was  sufficient  to  destroy  the  vendor's  right  to  rescind  the 
contract  of  sale.' 

§  1044.  If  a  party  desires  to  rescind  on  the  ground  of  fraud 
or  mistake,  he  must,  upon  the  discovery  of  the  facts,  at  once 
announce  his  purpose  and  adhere  to  it ;  if  he  be  silent,  and  con- 
tinue to  treat  the  property  as  his  own  he  waives  the  objection, 
and  will  be  as  conclusively  bound  by  the  contract  as  if  the  mistake 
or  fraud  had  not  occurred.  He  is  not  permitted  to  play  fast  and 
loose.  Delay  and  vascillation  are  fatal  to  the  right  which  had 
before  subsisted.^  Thus,  the  maker  of  a  note  given  to  secure  the 
purchase  money  for  land,  cannot  defend  a  suit  on  the  note  on  the 
ground  of  a  failure  of  title,  and  still  retain  the  land  and  enjoy 
the  profits.^  So  a  party  cannot  hold  money  as  county  funds  and 
refuse  to  account  for  it  to  the  county  authorities.^  So,  where  a 
party  has  collected,  on  behalf  of  a  municipal  corporation,  a  tax, 
levied  on  goods  consigned  to  him,  is  estopped  when  sued  by  the 
corporation  for  the  amount  of  the  tax,  from  setting  up  want  of 
authority  in  the  corporation  to  impose  the  tax.  So  a  widow  who 
has  voluntarily  ratified  a  mortgage  debt  by  paying  interest 
thereon,  is  estopped  from  asserting  that  the  preliminary  examina- 


'  Bulklej'  V.  IVIorgan,  46  Conn.  393.  83  N.  Y.  300;  Humiston  v.  Trustees, 

'Grymes  v.  Sanders.  93   U.   S.  55;  7   111.    App.  122;   Field   v.  Bland,  59 

Thomas   v.   Bartow,    48   N.    Y.    200;  How.  Pr.  85;  Wroten    v.  Armat,  31 

Flint  V.  Wood,  9  Hare,  622;  Jennings  Gratt.   228;   Frank  v.   Hollender,    35 

V.  Broughton,  5  De  G.  M.  &  G.  139;  La.  Ann.  582. 

Lloyd  V.   Brewster,  4  Paige,  537;   R.  ^  ;jj(.Daniel  v.    Bryan,    8  111.  App. 

R.  Co.  V.  Rowe,  24  Wend.  74;  Mintiun  273;  Wyatt  v.  Garlington,  56  Ala.  576. 

V.    Main,  7  N.  Y.  220;  Campbell  v.  *  Fleischer  v.  Klumb,  56  Wis.  439; 

Flemming,  1  A.  &  E.  41;  Duncan  v.  Fuller  v.  Atwood,  13  R.  L  310. 

R.  R.  Co..  5  R.  I.  130;  Hunt  v.  Hard-  =  Trustees  v.  Sterrett,  31  La.  Ann. 

wick,  68  Ga.  100;   Schieffer  v.  Dietz,  719. 


1172  The  Law  of  Estoppel. 

tion  required  by  statute  was  not  made.'  So,  in  an  action  on  notes 
given  in  settlement  of  a  suit,  the  maker  of  the  notes  cannot  set 
uj>  that  the  suit  was  not  based  on  a  legal  cause  of  action.'"'  So  one 
who  receives  possession  of  land  from  a  married  woman  under  an 
executory  contract  of  purchase,  and  enjoys  it  for  years,  will  not 
be  lieard  in  equity  to  plead  that  the  contract  was  not  binding  upon 
her,  or  to  refuse  payment  upon  her  tender  of  a  sufficient  deed.' 
These  instances  will  serve  in  a  measure  to  show  the  application 
of  this  just  and  equitable  doctrine. 

§  1045,  If  a  pirty  having  the  right  to  repudiate  or  affirm  a 
transaction,  affirms  it,  he  cannot  afterwards  resort  to  his  right  of 
repudiation.  Thus,  where  the  assignees  of  a  bankrupt  brought 
trover  for  chattels  of  the  bankrupt,  of  which  the  defendant  had 
taken  possession.  The  chattels  were  part  of  the  bankrupt's  stock 
in  trade,  which,  on  the  bankrupt's  absconding,  the  defendant  had 
taken  possession  of  and  carrie<l  on  the  trade.  He  had,  however, 
rendered  to  the  assignees  a  fair  account  and  turned  over  the  bal- 
ance. "The  defendant,''  said  Bayly,  J.,  "in  the  first  instance 
was  a  wrongdoer,  and  the  plaintiffs  might  have  treated  him  as 
such.  But  it  was  competent  in  their  character  of  assignees,  either 
to  treat  him  as  a  wrongdoer  and  disaffirm  his  acts,  or  to  affirm 
his  acts  and  treat  him  as  their  agent;  and  if  they  had  once 
affirmed  his  acts  and  treated  him  as  their  agent,  they  cannot 
afterwards  treat  him  as  a  wrongdoer,  nor  can  they  affirm  his  acts 
in  part  and  avoid  tliem  as  to  the  rest.  By  accepting  and  retain- 
ing the  bafance,  without  objection,  they  affirmed  his  acts,  and ' 
recognized  him  as  their  agent,  and  having  done  so,  they  are  not 
at  liberty  to  treat  him  as  a  wrong-doer."*  That  a  party  cannot 
affirm  the  existence  of  a  contract  to  promote  the  purpose  of  a 
I'ecovery  and  yet  treat  it  at  the  same  time  as  a  nullity,  in  order  to 
shut  out  the  opposite  party  from  a  defense,  which  would  be  open 
to  him,  is  entirely  too  inconsistent  with  reason  to  leave  much 
room  for  dispute.     When  it  becomes  necessary  to  choose  between 

'  O'Keefe  v.   Haudy,  31  La.    Ann.  ■*  Brewer  v.  Sparrow,  7  B.  &  C.  310; 

832.  Dalton  v.  Whitteii,  3  Q.  B.  961 ;  Back- 

'^  Feeter  V.  Weber,  44  N.  Y.  Super.  enstoss    v.    Stabler,   33   Pa.   St.    251; 

255.  Lytbgoe   v.   Vernon,  4  fl.  &  K  180; 

3  Coldclough  V.  Johnson,  34    Ark.  Smith  v.  Hodson,  4  T.  R.  211. 
312. 


Election.  1173 

inconsistent  rights  or  remedies,  the  election  will  be  final,  and 
cannot  be  reconsidered,  even  where  no  injurj'  has  been  done  bj 
the  choice,  or  would  result  from  setting  it  aside,  and  where  a 
bond  or  promissory  note  is  joint  and  several  in  its  terms,  the 
promisee  or  obligee  nuist  treat  it  as  being  either  the  one  or  the 
other,  and  cannot  sue  one  of  the  obligors  or  promisors  separately 
after  obtaining  a  joint  judgment  against  all.' 

The  right  to  exercise  an  election  within  a  given  time  must  be 
taken  advantage  of  within  such  time  or  it  is  lost.  Thus,  a  stipu- 
lation in  a  note  that  it  may  be  paid  in  specific  articles  of  property 
or  in  work  or  labor  is  for  the  benefit  of  the  payor,  and  he  may, 
as  he  elects,  pay  either  in  property  or  labor,  and  if  he  makes 
proper  tender  can  compel  the  creditor  to  accept  payment  in  the 
articles  or  work  ;  bat  if  he  fails  to  duly  exercise  his  election,  or 
make  a  proper  tender  when  it  is  necessary,  the  creditor  may 
enforce  payment  in  money." 

§  1046.  Where,  by  reason  of  a  breach  of  condition,  a  lease 
becomes  forfeited,  and  the  lessor  is  entitled  to  recover  possession  ; 
he  waives  that  right  by  the  acceptance  of  rent,  he  cannot  accept 
the  rent  and  at  the  same  time  claim  a  forfeiture  of  the  lease.^ 
Thus,    a    demand    for  rent  due  for  the  month    of   July    is    a 


'  Bank  v.  Hart,  5  Ohio  S.  33;  Beltz-  Heywood,  42  Me.  229;  Crandall  v. 
hoover  v.  Commonwealth,  1  Watts,  Bradley,  7  Weud.  311;  Laxtoa  v. 
126;  United  States  v.  Price,  9  How.  Johnson,  10  Johns.  418;  Fletcher  v. 
83;  Carpenter  v.  Carpenter,  70  111.  Derrickson,  3  Bos.  181. 
457;  Connihan  v.  Thompson,  111  ^Jackson  v.  Allen,  3  Cow.  220; 
Mass.  270;  Williams  v.  McFall,  2  S.  Allen  v.  Bartlett,  20  W.  Va.  40;  Mc- 
&  R.  280;  Rodermund  V.  Clark,  46  N.  Keldoe  v.  Darracotl,  13  Gratt.  278; 
Y.  354;  Sanger  v.  Wood,  3  Jotins.  Goodright  v.  Cordment,  G  T.  K.  219; 
Ch.  416;  Littlefield  V.Brown,  1  Wend.  Allen  v.  Dent,  4  Lea,  676;  Johnson  v. 
398;  Barwick  V.  Rackley,  46  Ala.  402;  Douglass,'  78  Mo.  168;  Ireland  v. 
Brown  v.  Ins.  Co.,  1  E.  &  E.  853;  Nichols,  46  111.  413;  Shattuck  v.  Love- 
Smith  V.  Pettee,  70  N.  Y.  13;  Land  joy,  8  Gray,  204;  Webster  v.  Nichols, 
Co.  V.  Tilton,  19  F.  R.  73;  Manf g  Co.  104  111.  160;  Newman  v.  Rntter,  8 
v.  Fuuge,  109  U.  S.  651.  AVatts,  51;   Jackson    v.    Sheldon,    5 

=  Nipp  v.  Diskey,  81  Ind.  214;  Pin-  Cow.  448;  Doe  v.  Rees,  4  Bing.  N.  C 

ney  v.  Gleason,  5  Wend.  393;  Gilbert  384;  Doe  v.  Ward,  1  Stark.  411;  Doe 

v.  Dan  forth,  6  N.  Y.   585;  Mettler  v.  v.   BaUeu,    Cowp.    247;   Gonrber    v. 

V.  Moore,  1    Blackf.   342;  Church  v.  Hackett,   6   Wis.  233;  Price  v.  Worn- 

Feterowe,  2  P.   &  W.   301;  Smith  v.  wood,     4    H.   &  N.    512;   Pennants' 

Smith,   2  Johns.   235;     Heywood  v.  Case,  3  Co.  64. 


1074  The  Law  of  Estoppel, 

waiver  of  a  right  of  entry  for  April.'  tio,  where  a  tenant  pays 
rent  to  a  stranger  in  reliance  on  liis landlord's  admission,  that  such 
party  was  entitled  thereto ;  the  landlord  is  estopped  to  enforce  a 
claim  for  such  rent.^  Alienation  without  license  operates  as  a 
forfeiture  of  the  term ;  still,  if  the  lessor,  with  knowledge  of  the 
forfeiture,  receive  rent  due  since  the  condition  broken,  such  con- 
duct upon  his  part  operates  as  a  waiver  of  his  right  to  take 
advantage  of  it.  But  not  so  if  the  landlord  was  unaware  of  the 
fact  of  the  forfeiture  at  the  time  of  receiving  the  rent,'  unless, 
perhaps,  where  it  appears  from  other  circumstances,  that  the  rent 
was  accepted  with  an  intention  of  continuing  the  tenancy  not- 
withstanding any  forfeiture  that  might  have  occurred.  Thus, 
where  the  lease  contained  a  covenant  not  to  underlet  without 
license,  and  a  power  of  re-entry  to  the  lessor  in  case  of  non- 
observance  of  the  covenants ;  the  lessee  underlet  various  parts  of 
the  premises,  but  the  lessor  knew  of  it,  and  received  rent  after- 
wards. "  The  case,"  said  Lord  Manstield,  "  is  extremely  clear. 
To  construe  this  acceptance  of  rent  due  since  the  condition 
broken,  a  waiver  of  the  forfeiture,  is  to  construe  it  according  to 
the  intention  of  the  parties.  Upon  the  breach  of  the  condition 
the  landlord  had  a  right  to  enter.  He  had  full  notice  of  the 
breach,  but  does  not  take  advantage  of  it,  but  accepts  rents  sub- 
sequently accrued.  That  sho%vs  that  he  meant  that  the  lease 
should  continue.  Forfeitures  are  not  favored  inlaw;  and  when  a 
forfeiture  is  once  waived,  the  court  will  not  assist  it."  Other  acts 
of  the  lessors,  besides  acceptance  of  rent,  have  been  lield  to  waive 
a  forfeiture,  when  they  show  an  intention  on  his  part  that  the 
lease  should  continue. 

>  Camp  V.  Snott,  47  Conn.  366.  v.  Lumley,  5  El.   «&  Bl.  648;  and  the 

"  Winterink   v.  Maynard,  47   Iowa,  opinion  of  the  judges  in  the  .same  case 

366.  in  the  House  of  Lords,  6  H.  L.  Case, 

3  Roe  V.  Harrison,  2  T.  R.  425;  Doe  672. 

V.  Birch,  1  M.  &  W.  402.  ^  Doe   v.   Meux,  4  Barn.  &  C.  606; 

*  Goodright  v.    Davis,    Cowp.  803;  Doe  v.  Birch,  1  M.  &   W.  402;  Doe  v. 

Browning's  Case,  Plowd.  133;  Roe  v.  Lewis,   5   Ad.  &  El.    277;  Dendy  v. 

Harrison,  2  T.  R.  425;  Doe  v.  Recs,  4  Nicholl,  4  C.  B.  (N.  S.)  370;  Ward  v. 

Bing.   K    C.  384;  Walrond   v.  Haw-  Day,  4  B.  &  S.  337;  affirmed,    5   B.  & 

kins,  L.   R.    10  C.    P.  342;  and  as  to  S.  359;  Pellatt  v.  Boosey,  31  L.  J.  C. 

the  effect  of  notice  of  one  breach  of  P.  281;  a   notice   to  repair  generally, 

covenant  where  several  of  the  same  "  in  accordance  with  the  covenants 

kind  have  been  committed,  see  Croft  in  a  lease,  was  held,  no  waiver  of  for- 


Election.  1175 

§  1047.  The  mere  receipt  of  subsequent  rent  does  not,  of  it 
own  proper  force,  operate  as  a  waiver  of  the  forfeiture.  It  is 
only  evidence  of  the  election  of  the  lessor  to  retain  the  reversion 
and  its  incidents,  instead  of  the  possession  of  the  land  ;  and,  as 
an  election  once  made  and  expressed  cannot  be  retracted  {quod 
semel  placuit  in  electionibus  mnplius  displicere  non  potest)  /' 
the  I'eceipt  of  subsequent  rent,  as  such,  without  more,  binds  the 
landlord  by  proving  an  election.  So  the  acceptance  of  rent  from 
an  assignee  or  purchaser  of  the  lessee,  will  preclude  the  lessor 
from  insisting  upon  a  forfeiture  on  the  ground  that  the  assign- 
ment was  made  without  his  written  assent,  as  provided  in  the 
lease.' 

§  1048.  Where  a  tenant  holds  over  after  the  end  of  the  term, 
or  incurs  a  forfeiture  by  committing  a  breach  of  condition  during 
its  continuance,  the  landlord  may  treat  him  as  a  trespasser,  or  as 
being  rightfully  in  possession,  but  must  choose  between  the  two, 
and  cannot  enter  and  bring  ejectment  after  the  receipt  of  subse- 
quent rent,  nor  enforce  the  payment  of  rent  after  entry  and 
bringing  ejectment.'  As  the  election  when  once  made  will  be 
final,  the  institution  of  a  suit  for  rent,  will,  though  nothing  is 
recovered,  operate  as  an  estoppel  to  a  subsequent  ejectment.* 
While  issuing  a  writ  or  serving  a  declaration  in  ejectment  will 
preclude  the  right  to  sue  for  subsequently  accruing  rent.* 
Where  a  tenant  holds  under  a  written  agreement,  "  for  five  years 
and  as  much  longer  as  he  desires,"  at  a  fixed  rent,  and  performs 
all  that  is  required  of  him  by  the  terms  of  the  lease — although 
the  five  years  have  expired — and  the  lessor  has  given  the  lessee 
notice  to  quit.  As  between  the  parties  the  right  of  occupation 
by  the  lessee  continues  as  long  as  he  fulfills  its  conditions,  and  can 
not  be  defeated  at  the  option  of  the  lessor.  The  lessor  as 
estopped  by  the  receipt  of  rent,  and  his  own  written  agreement 

feiture  for  non-repair.     Few  v.  Per-  B.  &  S.  337;  Grimwood  v.   Moss,  L. 

kins,  L.    R.    2  Ex.  93.    In  Ward  v.  R.  7  C.  P.  360. 

Day,  4  B.   &   S.    337;  the  forfeiture  ^  Webster  v.  Nichols,  104  111.  160. 

of  a  grant  was  held  to  be  waived  by  '  Hemphill  v.  Flynn,  2  Pa.  St.  144; 

the  grantor  having  in  negotiations  for  Stuyvesant  v.  Davis.  9  Paige,  427. 

a  rencMal  of  it,  treated  it  as  subsist-  *  Dendy  v.  Nichol,  4  C.  B.  (N.  S.) 

ing.  376. 

>  Co.  Litt.  146.  a.  ;  Ward  v.  Day,  4  *  Jones  v.  Carter,  15  M.  &  W.  718. 


1176  The  Law  ok  Estoppel. 

from  asserting  tliat  the  lessee's  possession  is  nnla-wfnl.'  He  can- 
not at  the  same  time  claim  that  tlie  lease  is  void  for  one  purpose, 
and  valid  for  another."  So  one  in  possession  under  a  lease 'for 
three  years,  with  a  privilege  of  five  years  upon  the  same  terms, 
by  continuing  to  occupy  after  the  expiration  of  three  years, 
elects  to  hold  for  the  full  term  of  five  years.' 

§  1049.  A  person  shall  not  be  allowed  at  once  to  benefit  b}' 
and  repudiate  an  instrument,  but  if  he  chooses  to  take  tlie  benefit 
M'hich  it  confei's,  he  shall  likewise  take  the  obligation  or  bear  the 
omis  which  it  imposes  ;  no  person  can  accept  and  reject  the  same 
instrument.  If  a  testator  give  his  estate  to  A.,  and  give  A.'s 
estate  to  B.,  courts  of  equity  hold  it  to  be  against  conscience  tliat 
A.  should  take  the  estate  bequeathed  to  him,  and  at  the  same 
time  refuse  to  give  effect  to  the  implied  conditions  contained  in 
the  will  of  tlie  testator.  The  court  will  not  permit  him  to  take 
that  which  cannot  be  his  but  by  virtue  of  the  disposition  of  the 
will,  and  at  the  same  time  to  keep  what,  by  the  same  will,  is 
given,  or  intended  to  be  given,  to  another  person.  It  is  contrary 
to  the  established  principles  of  equity  that  he  should  enjoy  the 
benefit,  while  he  rejects  the  condition  of  tlie  gift.*  Where,  there- 
fore, an  express  condition  is  annexed  to  a  bequest,  the  legatee 
cannot  accept  and  reject  the  will  containing  it.  If,  for  example, 
the  testator  possessing  a  landed  estate  of  small  value,  and  a  large 
personal  estate,  bequeaths  by  his  will  the  personal  estate  to  the 
heir,  M'ho  was  not  otherwise  entitled  to  it,  upon  condition  that  he 
shall  give  the  land  to  another,  the  heir  mnst  either  compl}^  with 
the  condition,  or  forego  the  benefit  intended  for  him.^     Although 

'  Swcetzerv.  McKenney,  60Me.  225.  Arney,   1   D.  &  B.  Eq.  376;   KeiT  v. 

«  Sands  V.  Hugbes,  53  N.  Y.  287.  AVaucbopo.  1    Bligb.   21;   Upsbaw  v. 

3  Montgomery  v.  Commissioners,  76  Upsbaw,  2  H.  &  M.  381 ;  Kinniard  v. 

Ind.  3G2;  S.  C.  40  Am.  It.  250.  Williams,   8   Leigh,   400  ;    Brown   v. 

*  Glenn    v.    Clark,    21    Gratt.    35;  Kicketts,    3    Johns.    Ch.    553;    Allen 

Benedict  v.  :M(mtgomery,  7  W.  &   S.  v.  Getz.  2  P.  &  W.  311;   Preston   v. 

238;  Sloan  v.  Holcomb,  29  Mich.  153;  Jones,  9  Pa.  St.  457;   Hall   v.  Hall,  1 

Moore  v.  Bowman,  29  Cal.  337;  Blake  Bland.  130;   Craig  v.  Craig,  7   Dana, 

V.  Bunbury,  4  Br.  Ch.  25;  Boughton  1;   Cogdell   v.    Widow,    3   Dess.   346; 

V.   Boughton,   2  Ves.  12;   Whistle   v.  McGinnis  v.  McGinnis,   1   Kelly,  496. 
Webster,  2  Ves.  Jr.  367;  McElfresh  v.  «  Emmons  v.  Jlilwaukee,   32   Wis. 

Schley,    1   Gill,    181;   Van   Duyne  v.  434:  Swanson  v.  Tarkington,  7  Heisk 

Van   Duyne,    17  ,N.    J.  E.  49;   Field  612;   State    v.    Lo:iger,    29    Wis.    68; 

v.  Eaton,  1  Dev.  Eq.  283;   Wilson   v.  Williams  v.  Giileon,  7  Heisk.  817. 


Election. 


1177 


a  widow  may  not  be  concluded  by  an  election  made  unadvisedly, 
or  in  ignorance  of  facts  calculated  to  influence  her  choice,  she 
cannot  treat  such  election  as  a  nullity,  nor  avoid  it,  except  upon 
the  restoration  of  what  she  has  received  under  it.  The  widow's 
right  of  dower  is  superior  to  the  claims  of  creditors,  devisees,  or 
legatees ;  but,  when  she  elects  to  accept  the  testamentary  provis- 
ion made  for  her  in  lieu  of  dower,  and  it  becomes  necessary  to 
sell  lands  for  the  payment  of  debts,  her  rights  must  yield  to  the 
claim  of  creditors,  though  superior  to  that  of  legatees  or  devisees.' 

§  1050.  He  who  accepts  a  benefit  under  a  deed,  a  will  or  other 
instrument,  must  confirm  the  whole  instrument,  conforming  to 
all  its  provisions  and  renouncing  every  right  inconsistent  with 
them."  The  doctrine  of  election  is  founded  on  the  same  reasons 
and  governed  by  the  same  rules  when  applied  to  a  widow  claim- 
ing dower  as  to  any  other  case.  One  entitled  to  a  benefit  under 
an  instrument,  whether  it  be  a  will,  or  any  conveyance  or  con- 
tract, must,  if  he  claims  the  benefit  of  such  instrument,  abandon 
every  right,  the  assertion  whereof  would  defeat,  even  partially, 
any  of  the  provisions  of  that  instrument.  A  party  cannot  occupy 
inconsistent    positions,    but    will    be   confined    to    his   election.' 


'  Steele  V.  Steele.  64 'Ala.  438. 

*  Walpole  V.  Conway,  Barn.  Ch. 
]59;  Kirkham  v  Smith,  1  Ves.  258; 
Frank  v.  Standish,  1  Bro.  G.  C.  588; 
Swan  V.  Holmes,  19  Beav,  471;  Win- 
tour  V.  C  if  ton,  21  Beav.  447;  Noys  v. 
Monlauiit,  2  Vern.  581;  Cowper  v. 
Scott.  :i  P.  Williams,  119;  Streatfield 
V.  Stn-atfield,  Cas.  T.  Tal.  176; 
IJoufrliton  V.  Coughton,  2  Ves.  12 ; 
ViDareal  v.  Galway,  Amb.  682;  Rob- 
erts V.  King.^ley,  1  Ves.  238;  Bigland 
V.  Huddieston,  3  Bro.  C.  C.  285;  Al- 
'eu  V.  PouUon,  1  Ves.  121;  Finch  v. 
Finch,  4  Bro.  C.  C.  38;  S.  C,  1  Ves. 
.Jr.  534;  McNamara  v.  Jones,  1  Bro.  C. 
C.  481 ;  Broome  v.  Monck,  10  Ves.  609; 
Jiirmingbam  v.  Kirwan,  2  Sch.  &  L. 
444;  Blake  v.  Buubary,  4  Bro.  C.  C. 
2-i;  S.  C.  1  Ves.  Jr.  514;'  Ileazle  v. 
Fitzmaurice.  ]3  li.  Ch.  481;  Dillon  v. 
J'arker,  1  Sw.  359:  Wilson  v.  Town- 
send,  2  V'es.  Jr.  093;  Crossby  v.  Lord 


Ashtown,  10  Ir.  Ch.  219;  Penn  v. 
Guggenheimer,  76  Va.  839;  Thelluson 
V.  Woodford,  13  Ves.  219;  Watson  v. 
Watson.  128  Mass.  152 ;  Picket  v. 
Bank,  32  Ark.  346;  Jacobs  v.  Miller, 
51  Mich.  119  ;  Wise  v.  Rhodes,  84 
Pa.  St.  402;  Zahrt,  in  re,  94  N.  Y. 
605;  Benson,  in  re,  96  K  Y.  499;  S. 
C,  48  Am.  R.  646;  Cory  v.  Cory,  37 
N.  J.  E.  198. 

^  Adams  v.    Agnew,  15  S.  C.   41, 
Wyatt    V.    Garlington,   56    Ala.   576 
Rodermund  v.   Clark,  46  N.  Y.  354 
Colclough  V.   Johnson,   34  Ark.  312 
Hyde  v.  Baldwin,  17  Pick.  303;  Miller 
V.   Ayers,  59   Iowa,    424;    Dewey  v. 
Bell.  5  Allen,  165;  Steele  v.  Steele,  64 
Ala.     438;    Hooper    v.    Hubbard,    7 
Mass.  177;  Feeter  v.  Webber,  44  N. 
Y.  Super.  255;  Ry.  Co.  v.  Ry.  Co.,  87 
111.  317;   ^Vright  v.  Wright,  72  N.  Y. 
149;  Pickett  V.  Bank,  32  Ark.  346. 


1178  The  Law  of  Estoppel. 

Where  a  widow's  taking  dower  would  interfere  with  the  provis- 
ions of  the  will,  she  must  make  her  election.'  AVhere  a  widow  is 
put  upon  her  election  between  dower  and  legacies  in  lieu  thereof, 
a  suit  for  legacies  is  a  substantial  election."  A  slight  expression 
of  intent  will  be  considered  sufficient  to  show  an  election.  No 
positive  act  is  required  therefor.'  Tlie  election  is  conclusive,  and 
cannot  be  set  aside.*  The  right  of  a  widow  to  elect  to  take 
under  her  husband's  will  must  be  exercised  by  her  in  person, 
either  by  matter  of  record  in  a  proper  court,  or  by  acts  creating 
an  estoppel  of  her  right  to  claim  under  the  law.* 

Where  there  is  a  plurality  of  rights,  the  party  from  whom 
one  is  derived  intending  that  both  shall  not  be  enjoyed,  the  doc- 
trine of  election  is  enforced  by  the  court.  Therefore,  where  a 
widow  sues  for  a  tract  of  land,  which  was  hers  before  marriage, 
but  disposed  of  by  her  husband's  will,  and  sold  to  defendant  by 
the  executor ;  and  by  the  same  will  devises  and  bequests  were 
made  to  her,  which  she  accepted  and  enjoyed  for  two  years,  and 
dower  under  the  will  was  allotted  to  her,  she  is  not  entitled  to 
recover,  first,  by  reason  of  the  estoppel  arising  out  of  her  elec- 
tion, and  secondly,  of  that  growing  out  of  the  judgment  of  the 
court  in  the  dower  proceedings." 

§  1051.  Where  a  party  has  two  or  ijiore  remedies  for  the  same 
wrong,  in  which  the  measure  of  damages  might  be  different, 
electing  one  and  pursuing  it  to  judgment  is  a  bar  lu  any  other 
remedy.'     Thus,  where  a  party  has  his  election  to  proceed  at  law 

'  Rutherford  v.  Mayor.  76  Va.  117;  •  97  Mass.  15;  Beall  v.  Pearre,  12  Md. 

Dixon    V.   McCue,  14Grat.  540;   Gib-  566;  Bunker  v.    Tufts,    57   Me.    417; 

sou  V.  Gibson,  17  E.  L.  &  E.  R.  676.  Bennett  v.  Hood,   1    Allen,  47;  Swecl 

■^  Johnson  v.  Duncan,  67  Ala.  61.  v.   Brackley,   53   Me.    346;    Smith  v. 

3  Prentice  v.  Jolnison,  79  N.  Y.  478.  Way,  9  Allen.  472;  Ilolbrook  v.  Foos, 

«  Harvey   v.    Ashley,    3    Atk.    607;  27  Me.  441 ;  Warren  v.    Cumniing;;,  6 

Butricke  v.  Broadhurst,  3  Bro.  C.  C.  (Xi.sh.   103;    Norton   v.    Dougherty,  3 

88;    Northumberland    v.    Aylesford,  Gray.  372;  O'Donald  v.    Constant,  82 

Amb.  540;   S   C,  1  Eden,  489;   Strat-  Ind.  212;  Nield   v.  Burton.  49  Mich, 

ford  V.  Powell.  1  B.  &  B.  23.  53;    Nichols   v.   Gage.    10   Oreg.   82; 

^  Millikin    v.    Welliver,  37  Ohio  St.  Wells  v.  Robinson,  13  Cal.  141 ;  Hahu 

460;  Ragsdalev.  Parish,  74  Ind.  491.  v.     Kelly,    62    Cal.    155;    Buchanan 

6  Signion  v.  Havvn,  87  N.  C.  450.  v.  Dorsey,    11    Neb.    373;    Milroy  v. 

'  Phillips  V.    Myers,    55   Iowa,  255;  Mining  Co.,  43  Mich.    231 ;  Haralson 

Finnv.  Peck,  47  Mich.  248;  Walsh  v.  v.   George,  56  Ala.   295;    Perkins  v. 

Canal  Co.,  59  Md.  423;  Ware   v.  Per-  Jones,    62     Iowa.    395  ;     Craigin    v. 

rival,  61  Me.  391;  Goodricli    v.   Yah',  Lnvcll.    109    U.    S.    ID-J  :     Harris    v. 


Election.  1179 

or  equity,  if  he  proceeds  at  law  he  is  estopped  from  proceeding 
in  equity.'  So,  a  party  waives  a  tort  and  conversion  by  suing  in 
assumpsit ;  it  is  an  election  which  estops  the  plaintiff  from  bring- 
ing an  action  of  trover ;  the  fact  that  tiie  first  suit  was  brought 
in  a  court  without  jurisdiction  does  not  destroy  the  election.''  So 
a  party  who  brings  an  attachment  suit  against  a  debtor,  affirms 
thcsale,  and  cannot  maintain  an  action  to  recover  the  goods.' 
So,  where  a  party,  in  an  action  of  ejectment,  elects  to  institute 
proceedings  under  a  statute,  as  under  the  occupying  claimant  law, 
he  is  estopped  from  seeking  relief  by  proceedings  in  error  against 
the  judgment  in  the  former  action.*  So,  where  under  a  statute 
authority  is  given  to  bring  suit  for  labor  against  the  corporation, 
alone  or  jointly  with  one  or  more  stockholders  ;  where  a  suitor 
has  elected  to  sue  the  corporation  alone,  and  has  recovered  judg- 
ment, he  cannot  afterwards  bring  his  action  on  the  same  debt,  or 
upon  a  claim  including  it,  against  the  corporation  and  stockhold- 
ers jointly,  or  conversely.^  So,  where  a  party  prevents  a  con- 
firmation of  a  sale,  and  obtains  an  extension  of  time  for  ])ayment 
of  the  purchase  money,  he  is  estopped  from  afterwards  raising 
the  question  of  the  payment  of  the  purchase  money,  as  required 
by  the  terms  of  the  decree  under  which  the  sale  was  made."  So, 
where  a  party  claims  a  contract  has  been  rescinded,  and  a  judg- 
ment rendered  against  the  other  party  to  it  upon  a  quantum 
merxdt^  he  is  estopped,  in  a  subsequent  litigation  with  the  san»e 
party,  from  claiming  the  right  to  carry  out  the  contract ;  the 
record  in  the  former  action  being  admissible  to  prove  the  estop- 
pel.'    This  principle  is  one  of  great  antiquity. 

"  But  of  civil  actious  which  are  for  a  thing,  some  are  allowed 
in  regard  to  possession,  others  in  regard  to  the  property.  And  if 
upon  the  same  subject  several  actions  are  competent  to  one  claim- 
ant, as  an  assize  of  novel  disseysine,  an  assise  of  the  death  of  an 
ancestor,  concerning  the  possession,  and  a  writ  of  entry,  and  a 
writ  of  right  as  regards  the  property,  he  cannot  make  use  of  all 

Brown,  9B  N.  Y.  390;   R  R.   Co.  v.  'O'Donald    v.    Constant,    82    Ind. 

Bank,  102  U.  S.  14.  212. 

'Halm    V.     Kelly,    62    Cal.    155;  ■»  Buchanan  v.  Dorscy,  11  Neb.  373. 

Wells  V.Robinson, 13  Cal.  141  ;  Craus-  *  Milroy  v.   Mining  Co.,  43   Mich, 

ton  V.  Smith,  47  Mich.  647.  231. 

»  Nield  V.  Burton,  49  Mich.  53.  «  Haralson  v.  George,  56  Ala.  295. 

'  Martin  v.  Boyce,  49  Mich.  122. 


1180  TiiF  Law  of  Estoppel. 

at  one  and  the  same  time,  but  he  must  choose  one  at  his  pleasure ; 
he  sliall  never  have  recourse  to  the  others  whilst  that  is  ])ending, 
but  if  he  sliall  have  recourse  to  another,  his  claim  on  the  other 
shall  not  be  entertained.  If  a  person  has  abandoned  one  form 
of  action  after  electing  it,  once  extinguished,  it  never  revives, 
except  where  there  is  a  defect  in  the  wn-it."  And  the  doc- 
trine was  the  same  in  the  civil  law  thus  :  "  Ctim  autem 
actlone  in,  rem  qids  semel  recesscrlt.,  vel  ah  actione  se  re- 
traxerit,  vel  judicium  contrariuin  hahuerit,  nunqua  ad  eandem 
redire  jpoterit^  cum  semel  actio  extincta  non  reviviscit.  Si 
autem  ex  quacunque  causa  d  hrevi  se  retraxerat  pro  aliquo 
defectu,  cfcc.cfec,  non  ah  actione^  aliuderit.  Actione  aute  ceviliu^ 
q  sunt  in  re,  alicB  datoe  sunt  sxip  ipsa  possessionem  alice  peditce  super 
ipsa  prietate.  Et  si  super  eadem  re  uni  p>ctenti  competdt  plures 
aciiones^  sicut  assisa  nov(B  disseysince  mortis  antecessoris  super 
possessione  cfi  hreve  de  ingressu,  et  hreve  de  recto  super  proprie- 
iate.  simrd  (&  semel  omnihus  nti  non  poterit,  sed  unam,  elegat  qua 
voluerit  <&  una  electa  nunq  hdbehit  regressxim  ad  alias,  pendente 
ilia  q  si  ad  aliain  recurrat,  impetratio  de  secunda  nonvalebit. 

§  1052,  If  a  party  be  induced  to  purchase  an  article  by  fraud- 
ulent misrepresentations  of  the  seller  respecting  it,  and  after- 
ward discovering  the  fraud,  continue  to  deal  with  the  article  as 
his  own,  he  cannot  recover  the  money  paid  from  the  seller;  nor 
does  there  seem  anj'  authority  for  saying  that  a  party  must,  in 
such  a  case,  know  all  the  incidents  of  a  fraud  before  he  deprives 
hiiKself  of  the  right  of  rescinding.  Where  an  agreement  has 
been  procured  by  fraud,  the  party  defrauded  may  at  his  election 
treat  it  as  void,  but  he  must  make  his  election  within  a  reason- 
able time.'     The  party  guilty  of  the  fraud  has  no   such  election. 

Preltymaa  v.  Supervisors,  19   111.  Shafer,    19    Tnd.    165;    Sicvekiug    v. 

406;  Gilbert  v.  Hunnewell,  12   Heisk.  Lilzler,  13   Ind.    13;    Fitch  v.   Aiclii- 

289;  Couseqna  v.  Fauuing,   3  Johns.  bald,    29  N.    J.    160;  R.  R.  v..R.  R., 

Ch.  587;  Fisher   v.  Merwin,    1    Duly,  11  C.  B.  803;  PilbroTv^  v.  R.  R.,   5  C. 

2:U;  Luud    v.  Bank,    S7   Barb.     129;  B.  453;  Bio-isou  v.  Wiraan,  10   Baib. 

Vv'eisl  V.  Grant,  71  Pa.  St.  95;  Rogers  40G;  Masson   v.  Bovet,   1  Denio,   14; 

V.  lliggins,    57   111.    244;    Shindler  v.  Parj^ons    v.    Hughes,    9    Paige,    591; 

Houston,  IN.  Y.  261;  Stone  V,  Brown-  Dill  v.  Camp,  22   Ala.    249;  Clement 

ing,  68  N.  Y.  598;  Caulkins  v.    Hell-  v.   Smith,    9   Gill,   156;    Edwards    v. 

man,   47N.  Y.  440;   Fitzsimmons   v.  Roljerts,    15    3Iiss.    547;    McCulloch 

Woodrufl,  74  N.  Y.   621;    Dynes  v.  v.  Scott,  13  B.  Mon.  172;   Grimes  v. 


Election.  1181 

So  a  party  ■wlio  accepts  part  payment  of  the  purchase  money  or 
brings  an  action  to  recover  the  proceeds  of  a  contract  or  sale, 
affirms  its  validity,  and  cannot  thereafter  be  permitted  to  ques- 
tion its  force  and  effect."'  So  a  party  having  taken  pay  for  an 
article  as  his  sole  property,  thereby  impliedly  warrants  such  title, 
and  is  estopped  to  show  a  different  one.'  So,  where  exempt 
property  was  wrongfully  sold,  by  an  administrator,  it  was  com- 
petent for  the  widow  to  ratify  the  sale,  which  she  did,  by  bring- 
ing suit  on  the  note,  and  that  a  recovery  upon  the  note  would 
vest  the  property  in  the  purchaser,  and  estop  her  from  recovering 
the  property  from  him.'  So  a  surety  on  a  replevin  bond,  who 
after  judgment  against  him,  takes  the  property  on  a  mortgage, 
and  delivers  it  in  satisfaction  of  the  judgment,  gives  up  his 
claim  as  mortgagee.*  So,  where  the  owner  of  property,  pur- 
chases it  at  a  tax  sale  and  assigns  the  certificate  for  value,  he 
cannot  deny  the  assignee's  title.'  Money  paid  under  a  contract 
which  the  payor  might  have  resistdd  as  a  forfeiture,  is  presumed 
to  have  been  paid,  because  the  party  elected  to  waive  the  forfeit- 
ture.'"'  Thus,  where  a  party  voluntarily  pays  a  disputed  claim, 
pending  litigation,  he  is  estopped  to  recover  the  money,  even 
though  the  suit  is  decided  in   his  favor."     So  a  party  who  has 

Saundeis,   93   U.    S.    Co;  Taymon  v.  495;   Flannigan  v.   Turner,   1  Black, 

Milcbell,  1  Md.  Ch.  496;   Sledmau  v.  490;  Waterwitch,  The,  1  Black,  494; 

Boone,  49  Ind.  169;  Krutz  v.    Craig,  Southard  v.  Porr}^.  21  Iowa,  488;  Far- 

5o   lud.  561;  Moon  v.  Bauni,  58  lud.  row  v.  Bragg,  30  Ala.  261;  Dalton  v. 

194;  Hiiies   v.    Laiigley,    85   Ind.  77;  Whittem,  3  Q.  B.  961;  Wilkinson  V. 

Bush  V.  Sherman,  80  111.  160;  Bristol  Mosely.  30  Ala.  562;  Kellogg  v.  Tur- 

V.  Gridley,  28   Conn.   201;  Beelem  v.  pie,  93  111.  265:  Whipple  v.  Whitman, 

Burkholder,  69  Pa.  St.  249;  Summers  13  R.  I.  512. 

V.  Kichie,   30   Pa.   St.  147;  Seylar  v.  ^  Starr  v.  Anderson,  19   Conn.  338. 

Car.son,  69  Pa.  St.  81;  Clarke  V.  Dick-  ^Johnson    v.    Perkins,    57     Tenn. 

inson,  1   E.  B.  &  E.   148;  Downer  v.  367. 

Smith,  32  Vt.   1;  Clark   v.    Neufville,  "  Rich  v.  Savage,  12  Neb.  413. 

46   Ga.    201;    Barton  v.    Simons,    14  ^  Kinsworthy  v.  Mitchell,  21  Ark. 

Ind.  49.  145. 

'  Ish  V.  Crane,  8  Ohio  St.  520;  Mor-  «  Gist  v.  Smith,  78  Ky.  367;  Rump 

ris   V.    Hall,    41    Ala.    510;  Smith   v.  v.   Schwartz,  56  Iowa.  611;  Heath  v. 

Shely,  12  Wall.  358;  Phillips  v.  Rog-  West,  68  Ind.  548;  Dawson   v.  Mann, 

ers,  12  Met.  405;  Breeding  v.  Stamper,  49  Iowa,  596;  Taylor  v.  Prestidge,  33 

18  B.  Mon.  175;  Sherman  v.  McKeon,  La.   An.  41;  Goeting  v.  Outh(j^use,  95 

38  N.  Y.  266;  Wood  v.  Seely,    32  N.  111.  346. 

Y.  105;  Rcqiia  v.  Holmes,  26  N.    Y.  '  Dawson  v.  Mann,  49  Iowa.  596; 

338  ;   Horton    v.    Davis,    26    N.   Y  Clark  v.  Everett,  2  Grant  Cas.  416. 


1182  The  Law  of  Estoppel. 

made  arrangements  to  borrow  money,  and  has  given  his  collater- 
als as  securitj,  and  has  them  returned  to  him  without  protest  or 
reservation,  w.iives  liis  claim  for  damages  for  breach  of  contract.' 
Thus  A.,  after  his  wife's  death,  was  unable  to  iind  liis  l)ank  book 
which  had  been  in  her  charge.  Ho  at  once  notitied  tlie  cashier 
not  to  pay  out  any  of  his  money  there  deposited.  The  cashier 
told  him  that  his  wife  had  made  deposits  in  her  own  name,  and 
advised  him  to  procure  some  one  to  'act  as  administrator  of  his 
wife's  estate.  A.  accordingly  procured  B.  to  act  as  administrator, 
and  upon  B.'s  demand,  the  bank  paid  to  him  the  whole  sum 
standing  to  the  credit  of  his  wife.  Subsequently,  A.,  without 
w\aiting  for  accounting  by  B.,  brought  an  action  against  the  bank 
to  recover  the  amount  paid  out  to  the  administrator ;  the  money 
having  been  paid  to  B.,  as  administrator,  with  the  consent  and 
by  the  procurement  of  the  plaintiff,  the  latter  was  estopped  from 
setting  up  any  claim  against  the  bank,  and  was  relegated  to  the 
position  of  a  creditor  of  his  wife's  estate.' 

§  1053.  Where  a  party  pays  an  illegal  demand  with  a  full 
knowledge  of  all  the  facts  which  render  such  demand  illegal, 
without  an  immediate  and  urgent  necessity  therefor,  or  unless  to 
release  his  person  or  property  from  det<mtion,  or  to  prevent  an 
immediate  seizure  of  his  person  or  property,  such  payment  nuist 
be  deemed  voluntary  and  cannot  be  recovered  back.  And  the 
fact  that  the  party  at  the  time  of  making  the  payment  files  a 
written  protest  does  not  make  the  payment  involuntary.'  A  con- 
tinned  recognition  of  a  debtor's  liability  and  his  agreement  to 
discharge  it  after  he  has  full  knowledge  of  all  the  facts  in  relation 

'  Taylor  v.  Prcstidge,   38   La.  An.  Comnirs,  98    U.  S.  541;   K.  R.  Co.  v. 

41.  "Wyandotte  Co.,  16  Kas.  587;  Cook  v. 

-  McDermott  v.   Bank,  100  Pa.    St.  Boston,   9   Allen,   393;   Mn.scatinc   v. 

285.  Packelt  Co.,  45  Iowa,  185;  Delaucy, 

sLambornv.  Dickenson  Co.,  97  U.  in  re,  52   N.  Y.  80;   Swift  v.  Poiigli- 

S.  181;  R.  R.  Co.  v.  Dodge  Co.,  98  U.  keepsio,  37  N.   Y.  514;  Bank,  &c.  v. 

S.   541;   Council   v.  Burnett,  84  Ala.  Mayor,    43    N.    Y.    184;    Wilkes    v., 

400;  Christy  V.  St.  Louis,  20  Mo.  148;  Mayor,     21     Alb.     Law     Jour.    376;1 

Walker    V.    St.    Louis,   15    Mo.    563;  Cachet  v.  McCall,  50  Ala.  307;   Falls] 

Smith  V.  Readtield,  27 Me.  145;  Emory  v.  Cairo,  58  111.  403;   Sullivan   v.  3Ic- 

V.  Lowell,  127  Mass.  138;  Comm'rs  v.  Caramon,  51  Ind.  204;  Stephenson  Co 

Land  Co.,  23  Kas.  196;   R.  R.  Co.  v.  v.  Manny,  56  111.  IGO. 


Election.  1183 

to  the  matter,  estops  himself  from  pleading  a  want  of  considera- 
tion or  setting  up  fraud  as  a  defense  to  an  action  on  the  promise.* 

§  1054  The  estoppel  of  an  election  will  extend  beyond  the 
immediate  parties  to  the  suit  or  act  by  which  the  election  is 
made,  and  be  binding  in  favor  of  all  who  claim  under  or  are  con- 
nected with  them  as  privies.*  Thus,  when  a  vendor  who  has  sold 
goods  to  an  agent  for  an  undisclosed  principal,  has  once  signified 
his  intention  to  charge  or  sue  either  of  them  with  full  knowledge 
of  the  relation  in  which  he  stands  to  both,  he  will  be  bound  by 
his  determination  and  cannot  afterwards  recall  it  for  the  purpose 
of  proceeding  against  the  other.  In  like  manner,  a  suit  for  the 
proceeds  of  goods  or  lands  which  have  been  sold  wrongfully 
without  authority,  will  operate  as  an  affirmance  of  the  sale,  not 
only  in  favor  of  the  defendant,  but  all  who  claim  mediately  or 
immediately  under  him  as  purchasers,  and  give  them  a  good  title 
to  the  property  by  the  mere  fact  of  its  institution  before  and 
independently  of  judgment  or  satisfaction.^  And  where  a  prisoner 
under  a  ca.  sa.,  who  has  been  permitted  to  go  at  large  by  a 
sheriff,  subsequently  returns  to  jail  and  is  handed  over  to  his 
successor,  wno  again  sufiers  him  to  depart,  the  plaintiff  in  the 
execution  may  consider  him  as  having  remained  in  custody  for 
the  purpose  of  making  the  second  sheriff  responsible,  or  as  having 
escaped  for  that  of  charging  the  first,  but  cannot  do  both,  and 
will  be  barred  by  suing  either  from  recovering  subsequently 
against  the  other.''  So,  where  business  usage  requires  an  employee 
to  make  full  showing  of  his  claims  against  his  employer  for  the 
purpose  of  a  complete  settlement,  his  deliberate  concealment  of 
a  claim  estops  him  from  relying  upon  it  afterwards,  and  the 
arrangement  and  comparison  of  mutual  demands  must  be  regarded 
as  a  final  statement  of  his  claims  which  it  would  be  a  fraud 
to  disturb.^  So,  the  promise  of  a  surety,  without  other  consider- 
ation than  the  extension,  to  pay  the  note  if  his  principal  does 

'  Fitzpatrick  v.   Flannigan,  106  U.  niagton  v.  Hunt,  20  F.  R.  195. 

S.  648;  McCrary  v.  Parsons,  31  Kans.  ^  Iqs  Qq    ^   Cochran,  27  Ala.  228; 

447;  Stebbiusv.  Crawford  Co.,  92  Pa.  Nelson  v.    Can-ingtou,  4  Munf.  332; 

St.  289;  S.  C,  37  Am.  R.  687.  Sanger  v.    Wood,  3   Johns.  Ch.  416; 

'Merrick's  Estate,    5   W.    &   S.  9;  Pettus  v.  Smith,  4  Rich.  Eq.  197. 

Board  V.    Board,    L.  R.  9  Q.    B.    48;  «  Rawson  v.  Turner,  4  Johnson,  469. 

Anstee  v.  Nelms,  1  H.  &  N.  232;  Pen-  ^  Qingrass  v.  Iron  Co.,  48  Mich.  413- 


1184  The  Law  of  Estoppel. 

not,  made  after  the  creditor  has  arranged  with  the  principal  to 
extend  the  time  of  payment,  but  with  a  full  knowledge  of  ail  the 
facts,  is  good.  Where  a  surety  has  been  discharged  by  the 
extension  of  time,  it  is  a  personal  privilege  which  he  may  waive, 
and  this  he  does,  when,  with  a  full  knowledge  of  the  facts  he 
renews  his  promise.'  A  judgment  debtor  may  elect  that  a  judg- 
ment, although  paid  in  full,  may  by  contract  be  kept  alive  to 
secure  a  new  loan,  and  parol  evidence  of  such  contract  is  admis- 
sible in  an  action  between  the  parties.  While  such  a  contract  is 
void  as  to  subsequent  lien  creditors  of  the  debtor,  he  himself  is 
estopped  from  denying  it.^ 

§  1055.  Whatever  may  be  the  rule  in  other  cases,  there  can 
be  no  doubt  that  when  the  ground  taken  by  either  party  to  a 
suit,  is  prejudicial  to  the  other  by  cutting  him  off  from  a  good 
defense,  or  precluding  a  recovery  on  a  valid  cause  of  action,  it 
will  bind  tlie  party  who  adopts  it,  by  an  equitable  estoppel,  if  in 
no  other  way,  and  will  preclude  him  from  shifting  his  ground, 
in  a  subsequent  suit,  to  the  injury  of  his  opponent.  Thus  a 
defendant  who  succeeds  in  defeating  one  action,  on  the  ground 
that  a  third  person  ought  to  have  been  joined  with  the  phiiiitiff 
as  a  partner,  will  not  be  permitted  to  deny  the  partnership  in  a 
subsequent  suit,  instituted  for  the  same  debt  by  both.'  In  like 
manner,  one  who  pleads  a  former  recovery  for  the  same  cause  of 
action,  will  be  legally  and  equitably  precluded  from  denying  the 
validity  of  the  judgment  thus  pleaded,  in  any  subsequent  pro- 
ceeding instituted  upon  it.*  And  when  an  equity  which  had  been 
sold  under  a  decree  of  court  was  subsequently  bought  with  notice 
of  the  rights  of  an  intervening  purchaser,  and  then  used  by  the 
buyer  as  a  means  of  procuring  a  patent  from  the  United  States, 

1  Fowler   v.  Brooks,  13   N.  H.  240;  Coombs,    96  P;i.    St.    430;    Pierse   v. 

Porter  V.  Hodeupuyl,  5  Mich.  11;  Biink  Bluck,    104   Pa.    St.    414;     Harris  v. 

V.  Whitman,  06  111.  331;   IVIayliew  v.  Brown,    93  N.    Y.    390;    Craigiu    v. 

Cricketts,    2  Swanst.    185;    Smith   v.  Lovell,  109  U.   S.   194;   R.    R.   Co.  v. 

Winter,  4  M.  &  W.  454  ;   Stevens  v.  Bank,  103  U.  S.  14. 

Lynch,  12  East,  38;  Br;imblev.  Ward,  •'' Kelloy   v.    Eichman,  5   Wharton, 

40  Ohio  St.  207.  446;  Turner  v.  Billagram,  2  Cal.  520; 

5  Anderson  v.  Nefif,  11  S.  &  R.  208;  Hariis  v.  Brown,  93  N.  Y.   390;  Pcr- 

Craft  V.  Webster,  4  Rawle,  255;  Irwin  kins  v.  Jones,  62  Iowa,  345. 

V.    Tabb,    17   S.  &  11.   419;    Schenk's  ■»  Taylor  v.  Parkhiirst,  4  Barb.  97; 

Appeal,   33  Pa.    St.    371;    Mitchel  v.  R.  R.  Co.  v.  Bank,  102  U.  S.  14. 


Election. 


1185 


he  is  held  to  be  estopped  from  setting  np  the  invalidity  of  the 
decree  against  the  prior  purchaser,  because  the  patent  was 
granted  under  the  belief  that  the  applicant  had  a  right  to  the 
land,  and  would  not  have  been  issued  if  the  proceeding  which 
constituted  the  foundation  of  his  title  had  been  known  to  be 
defective.'  The  principle  is  a  general  one,  and  applies  in  every 
instance,  where  an  attempt  is  made  to  present  the  same  matter  in 
different  and  inconsistent  aspects,  and  thus  gain  an  inequitable 
and  unfair  advantage." 

§  1056,  Tlie  doctrine  that  uo  one  can  adopt  or  affirm  those 
portions  of  a  transaction  wdiich  make  in  his  own  favor,  and  dis- 
affirm the  rest  to  the  injui-y  of  third  persons,  is  held  in  equity  to 
preclude  a  legatee  or  devisee,  who  accepts  a  benefit  under  the 
will,  from  impugning  the  right  of  a  testator  to  dispose  of  the 
other  property,  given  by  the  same  instrument,'  and  has  a  wide 
and  beneficial  application  at  law.  Thus,  a  creditor,  who  receives 
or  even  comes  in  and  claims  a  dividend  under  an  assignment  in 
trust  for  the  payment  of  the  debts  of  the  assignor,  cannot  subse- 
quently impeach  it  as  fraudulent  and  void,  for  want  of  compli- 
ance with  the  act  of  assembly,  by  which  such  transfers  are  regu- 


•  Garrett  v.  Lyle,  27  Ala.  586. 

2  Hayes  v.  Gudykurst,  1  Jones,  221 ; 
Varick  v.  Edwards.  U  Paige,  289; 
Queeu  v.  Sandwich.  10  Q.  B.  563; 
Giles  V.  Halbcrt,  12  N.  Y.  32;  Dicken- 
son V.  Smith,  25  Barb.  102;  Wood  v. 
McGuire.  17  Ga.  303;  Powell  v.  Wasii- 
ington,  15  Ala.  803;  Hailey  v.  Franks, 
18  La.  Ann.  559;  Bark  Edwin,  The, 
Sprague,  477;  Guild  v.  Balridge,  2 
Swan  295;  Smith  v.  MeNeah  68  Pa. 
St.  164;  Cromwell  v.  Mason,  2  Bush, 
438;  Hulse  v.  I)ov.sey,  14  La.  Ann. 
302;  Herman  v.  French,  2  Gin.  (O.) 
561;  Watscm  v.  Violett,  2  Duv.  332; 
Wilkins  v.  Anderson.  11  Pa.  St.  399; 
Bank  v.  White,  6  Barb.  589;  Weedon 
V.  Laiidraux,  26  La.  Ann.  729;  Jones 
V.  Beale,  2  P.  &  H.  389;  Hocker  v. 
Gentry,  3  Met.  (Ky.)463;  Kinsworthy 
V.  Mitchell,  21  Ark.  145;  Baltes  v. 
Ripp,  3  Keyes,  210;  Hunt  v.  Bass,  2 
Dev.  Eq.  292;  Bank  v.  Dennis,  37  111. 
Vol.  I.— 75 


381;  Chiapella  V.  Brown,  14  La.  Ann. 
189;  Van  Leer's  Appeal,  24  Pa.  St. 
224;  Lehaiu  v.  Philpot,  L.  R.  10 
Exchq.  242;  Harnet  v.  Davis,  7  Taunt. 
577;  Vaspor  v.  Edwards,  1  Salk  248; 
Flower  v.  Herbert,  2  Ves.  326; 
Edwards  v.  Kelly,  6  M.  &  S.  204; 
Dewey  v.  Bell.  5  Allen,  165;  Like  v. 
Howe,  6  Esp.  20;  Foster  v.  Bettsworlh, 
37  Iowa,  415;  Mercer  v.  Wise,  3  Esp. 
219;  Gouldie  v.  Gounston,  4  Camp. 
380;  Potter  v.  Adams,  24  Mo.  159, 
McLeod  V.  John.son,  28  Miss.  374; 
Koon  V.  Snodgrass,  18  W.  Va.  320; 
Conklin  v.  Smith,  7  Ind.  107;  Nelson 
V.  Claybrook,  4  Lea,  687;  Ante,  §§ 
282,  et  seq. 

^  Hotclikiss  V.  Thomas,  6  Jones  L. 
537;  Morrison  v.  Bowman,  29  Cal. 
33?;  Adams  v.  Lansing,  17  Cal.  620; 
Hopson  V.  Commonwealth,  7  Bush, 
644;  R.  R.  Co.  v.  Starkweather,  21 
Kas.  322. 


1186  The  Law  of  Estoppel. 

latcd.'  "Where  a  citizen  of  one  state  makes  himself  a  party  to  the 
proceedings  of  his  debtor  instituted  in  anotlier  state,  to  obtain  the 
benefit  of  the  bankrupt  or  insolvent  law,  and  receive  a  dividend 
from  the  assignee  of  the  bankrupt  or  insolvent,  he  abandons  the 
extra-territorial  immunity  which  he  might  otherwise  claim  from 
flie  operation  of  those  laws.  But  where  he  simply  purchases  as  any 
stranger  might,  he  will  not  be  estopped  to  question  its  validity.* 
A  fiduciary  creditor  whose  debt  is  not  affected  by  a  discharge  in 
bankruptcy,  may  waive  his  privilege  by  proving  his  debt  and 
receiving  a  proportionate  share  of  the  dividend,  and  be  estopped 
from  controverting  the  discharge.'  A  right  arising  under  a 
legacy  or  a  will,  or  a  gift  by  the  testator  in  his  lifetime,  may  be 
extinguished  by  allowing  the  executor  to  chai'ge  himself  with  the 
value  of  the  property  in  his  account,  and  apply  it  to  the  })aymont 
of  distributees  and  creditors.* 

§  1057.  A  party  who  has  once  made  an  election,  is  bound  to 
abide  by  his  determination,  unless  he  can  restore  the  property  to 
its  original  situation.  The  principle  of  election,  requiring  a  man 
to  choose  between  different  and  inconsistent  rights,  estopping  him 
from  asserting  one  when  he  has  deliberately  elected  to  enforce 
the  other,  is  a  rule  of  natui'al  justice  which  has  long  been  known 
to  the  common  law,  and  has  been  enlarged  and  liberalized  by 
equity.^     Thus,  a  party  will  not  be  allowed  to  impeach  or  impugn 

'  Loney    v.    BaUcy,    45    Md.    447;  Hodges,  1  E.  B.  &  E.  375 ;  Morris  v. 

Richards    v.    White,    7    Minn.    345;  Rexford,  18  N.  Y.  552;    Draper  v. 

Lemay    v.    Bibcau,    2     Minn.     291;  Stcuvenal,  38  N.  Y.  221;  Van  Hook 

Rapelce    v.    Stewart,    27   N.  Y.    310;  v.  Wliitlock,  26  Wend.  43;  Emhury  v. 

Holler  V.  Tuska,  87  N.  Y.  166;  Roder-  Conner,  3  N.   Y.   511;  Field  v.  How^ 

mund   V.  Clark,  46  N.  Y.  354;  Hone  laud,    17    Johns.    85;    Alexander    v. 

V.   Henrique,  13   Wend.  240;    Palmer  Gibson,   1  N".   &  ]\IcC.   480;    Wall   v. 

V.   Smith,   10  N.  Y.   303;   Pickett  v.  Court,    &c.,    1    Bay,   435;    Mather  v. 

Bank,  32  Ark.  336;  Babcoek  v.  Dill,  Bush,  16  Johns.  223. 

43    15arb.    577;     Adlum    v.    Yard,    1  ^  Chapman  v.  Forsyth,  2  How.  202. 

Rawle,  163;  Burke's  Estate,  1  Parsons'  ^Harrison   v.    Pool,    16   Ala.    10?; 

Eq.  470;  Jones  v.  Hersey,  4  Ud.  306;  McCrevy  v.  Remson,  19  Ahi.  430. 

Lanalian  v.  Latrobe,  7  Md.  27;  Bur-  ^  Cauapbell  v.   Stevens,   06  Pa.   St. 

rows  V.  Alter,  9  Me.  424;  Gutzwiller  314;    Lee  v.  Templcton,  73  Ind.  315: 

V.  Lackman,  23  Mo.  168;  Garnham  v.  Hyde  v.  Baldwin,  17  Pick.  303;  Thel- 

Rogers,    1    Dickens,    63;    Stroble    v.  luson    v.    Woodford,    13    Ves.    2l»9; 

Smith,  7  Watts.  280.  Churchman  v.    Ireland,    1    R.   &  M. 

■^  Clay  V.  Smith,  3  Pet.  411;  Phillips  250;  Tibbetts  v.  Tibbetts,  19  Ves.  0.55; 

V.   Allen,  8  B.  &  C.   477;   Bartley  v.  Brown  v.  Ricketts,  3  Johns.  Ch.  553; 


Election.  1187 

a  title  or  decree  which  he  has  set  up  or  relied  on  in  a  prior  pro- 
ceeding, if  the  effect  will  be  to  place  other  persons  in  a  worse 
position  than  they  would  have  held  if  he  had  maintained  the 
ground  originally  taken.'  Any  person  accepting  a  benefit  con- 
ferred by  a  will,  is  estopped  from  disputing  its  provisions  or 
claiming  property  to  which  he  is  entitled  in  his  own  right,  but 
which  has  been  bequeathed  by  the  testator  to  third  persons, 
without  making  them  a  compensation  equal  to  the  full  value  of 
the  gift."  But  the  estoppel  is  not  created  unless  the  acts  or 
declarations  constituting  it  are  plainly  inconsistent  with  the  rights 
which  they  are  alleged  to  have  barred,  and  were  made  with  full 
knowledge  of  its  existence.^  Where  one  puts  forth  his  own  title 
to  the  premises  in  controversy,  in  support  of  the  tenant's  title,  in 
an  action  of  ejectment,  and  thus  invites  the  action  against  him 
self,  it  is  then  too  late  for  him  to  object  that  he  is  not  a  proper 
party  to  the  action.*  So  an  alien  to  whom  a  devise  of  an  interest 
in  real  estate  has  been  made,  and  who  has  received  its  value  in 
proceedings  for  partition,  is  estopped  to  set  up,  against  a  demand 
for  a  succession  tax  thereon,  that,  by  the  law  of  the  state  where 
the  estate  is,  the  devise  is  absolutely  null  and  void.^ 

§  1058.  A  creditor  who  treats  a  deed  as  conclusive  evidence 
for  the  purpose  of  seizing,  on  attachment  or  execution,  the  fruits 
produced  by  the  grantee's  industry,  upon  a  claim  that  such  fruits 

Collins  V.  Woods,  65  111.  285;   Etcbe-  &  S.  526;  Wood  v.  McGuire,  17  Pa.  St. 

borne  v.   Auzeiais,  45  Cal.  122;   Wil-  313;  Lee  v.  Templeton,  73  Ind.  315. 
sonv.  TowDsend,  2  Ves.  Jr.  696;  Byst         2  Benedict  v.  Montgomery,  7  W.  & 

V.  Dawes,  3  Rich.  Eq.  881;   Gray  v.  S.  278;   Fitts  v.  Cook,  5  Cash.  596; 

Palmer,  2  Rob.  (N.  Y.)  500;   Sangster  Weeks  v.  Patton,  18  Me.  42;   Keefer 

V.  Commonwcaltli,  17Gratt.  124;  Wil-  v.  Schwartz,  47  Pa.  St.  503;   Brantley 

banks  V.  Wilbanks,  18  111.  17;  Fenster-  v.  Key,  5  Jones  Eq.  332;   Smith  v. 

machcr  v.  Moyer,  35  Pa.  St.  354;  Mar-  Guild,  34   Me.  443  Martin  v.  Ives,  17 

tin  V.  Ives,  17  S.  &  R.  364;   Thurston  S.  &  II.  364. 

V.   Doane,   47    Me.    79;   Bradford   v.         3  Yim  v.  Crook,  5  Gush.  596:   Ben- 
Beyer,    17   Ohio   St.    388  ;    Paine   v.  jamin  v.  Gill,  45  Ga.  110;  Lee  v.  Tem- 
Wooley,  80  Ky.  568;  3IatIow  v.  Cox,  pleton,  73  Ind.  315. 
25  Tex.  583.  ^  Abeel  v.   Van  Gelder,  36  IS.  Y. 

»  Baily  v.  Baily,  44  Pa.  St.  274;  Ul-  513. 
lery  v.  Clark,  18  Pa.  St.  148;  Smith  v.         '  g^^.j^jQ  y    Seamens,   9  Wall.  273; 

Jack,  2  W.&S.  101;  Stone  v.Britton,  Edwards  v.   Chapman,   1  M.   &   W. 

22  Ala.  543;  Dickenson  v.  Smith,  25  231;  Hyde  v.  Baldwin,  17  Pick.  303. 
Barb.  102 ;  Goodman  v.  Losey,  3  W. 


1188  The  Lavv^  of  Estoppel. 

belong  to  the  grantor,  will  not  be  permitted  to  contest  the  validity 
of  the  conveyance  in  an  action  brought  against  him  by  the  grantor 
for  such  taking.  A  party  cannot  ratify  and  yet  repudiate  liie 
same  transaction  in  the  same  breath.'  Thus,  a  defendant  having 
wheat  stored  in  a  warehouse,  sold  it  and  gave  the  purchaser  an 
order  on  the  warehouseman  to  deliver  it  oat  of  store  No.  11,  as 
per  the  receipt  of  the  warehouse  held  by  him.  The  warehouse- 
man tilled  the  orders  and  delivered  the  wheat  out  of  the  plaintiifs 
wheat  in  No.  12,  and  the  defendant  received  the  price.  Ileld^ 
that  having  availed  himself  of  the  acts  of  his  agent  to  obtain  the 
vendee's  money,  he  could  not  repudiate  su  much  of  the  agency  as 
would  enable  liim  to  keep  the  money  and  defeat  the  plaintiff's 
action  for  money  had  and  received.^  So  a  party  is  estopped  from 
denying  the  hona  fide  character  of  securities,  and  thus  rendering 
usurious  a  loan  obtained  by  him  upon  his  own  representations 
that  the  securities  were  valid.'  A  creditor  who  has  confirmed  a 
fraudulent  deed  by  receiving  a  benefit  under  it,  or  has  become 
a  party  to  it,  is  estopped  from  afterwards  impeaching  it,*  and  an 
insolvent  assignee  who  has  affirmed  a  fraudulent  sale  of  the  insolv- 
ents, by  suing  for  the  price  and  attaching  the  debtor's  property, 
cannot  afterwards  set  aside  the  sale  and  maintain  trover  for  the 
])roperty/  So,  where  a  party  causes  a  writ  of  attachment  to  issue, 
he  cannot  sot  uji  as  a  defense  to  a  suit  on  the  bond,  that  the  pro- 
cess which  he  had  sued  out,  was  not  in  accordance  with  law.' 
And  so,  where  one  has  procured  a  disqualified  official  to  perform 
an  official  act,  he  cannot  thei'eafter  repudiate  such  act  on  account 
of  the  incompetency  of  the  official.'  So  a  grantee  who  has  con- 
tracted for  property,  made  a  ])artial  payment  and  executed  a  mort- 

'  GarbiUt   v.    Smith,   40   Barb.  32;  549;    Howell   v.    Hule,    5    Lea,    405; 

Pomroy    v.    Parmlee,    9    Iowa,    140;  Smith    v.    Munroe,    84    N.    Y.    (U3; 

Bavnabe  v.   Suacr,   18  La.  Ann.  148;  Dodge  v.  Pope,  93  Ind.  480;  Williams 

AVoddley  v.  Covenlry,  2  H.  &  C.  164.  v.  Wells,  62  Iowa,  740. 

2  Cobb  V.  Dows,  10  N.  Y.  335.  "  Burrows    v.    Alter,    7    Mo.    424; 

3  Ins.  Co.  V.  Bayaid,  5  K.  Y.  Leg.  Rennick  v.  Bank,  8  Ohio,  529;  Fitch 
Obs.  13;  Cily  Council  v.  Caulticld,  19  v.  Baldwin,  17  Johns.  161;  Richard- 
S.  C.  201;  Graves  v.  Rogers,  59  N.  son  v.  White,  7  Ind.  345;  Lemay  v. 
II.  452;  Savings  Inst.    v.   Wilmot,  94  Bibean,  2  Minn.  291. 

K   Y.    221;  S^  C.   46  Am.    R.    137;  ^  Butler  v.  Hildreth,  5  Met.  49. 

Womble  v.  LeacL,  83  N.  C.  84;  lias-  *  Druramond   v.    Stewart,  8   Iowa, 

enritter   v.    Krichatfer,    79   Mo.    239;  341. 

R.  R.  Co.  v.  Hitchcock,  37  N.  J.  E.  •"  Bank  v.  R.  R.,  1  Vt.  159. 


Election.  11S9 

gage  for  the  balance  Avitli  the  usual  covenant,  and  delivers  it  to 
the  party  who  holds  the  deed,  and  then  takes  and  holds  possession 
of  the  property  purchased,  is  estopped  to  deny  the  delivery  and 
acceptance  of  the  deed.* 

§  1059.  Equitable  estoppels  apply  where  the  proceeds 
received  arise  from  a  sale  by  authority  of  law,  as  well  as  where 
they  spring  from  the  act  of  the  party  ;  and  the  application  of  this 
principle  does  not  depend  upon  any  supposed  distinction  between 
a  void  and  a  voidable  sale.  As  where  a  party  receives  his  share 
of  the  proceeds  of  a  sale,  when  by  statute  his  title  is  not  affected, 
he  affirms  the  sale,  and  cannot  dispute  the  title  of  the  purchaser," 
or  where  an  officer  allows  property  to  be  sold  and  receives  the 
proceeds,  he  cannot  re-levy  on  the  property  sold  on  another 
writ.*  Where  a  debtor  stands  by  and  permits  an  officer  to  sell 
his  property  on  execution  as  the  property  of  another,*  or  allows  a 
sale  to  be  made  on  a  dormant  judgment,'  or  induces  a  stranger  to 
purchase,  and  the  proceeds  are  applied  to  the  payment  of  his 
debt,*  or  when  he  can  avoid  a  sale,  but  consents  to  it,'  or  the 
officer  acts  without  authority  and  he  consents  to  it,*  or  where  the 
debtor  himself  points  out  the  property  to  be  levied  on  and  sold," 
or  executes  a.  deed  to  the  pnrchasei-,  wherein  he  conveys  and 
recognizes  the  sheriff's  sale"  estops  the  debtor  from  setting  up  any 
claim  to  the  property,  or  from  disputing  the  purchaser's  title. 
The  least  act  of  waiver  by  the  debtor  of  the  irregularity  of  an 
execution  issued  after  the  statutory  period,  or  acquiescence  or 
action  on  his  part,  under  it,  as  a  valid  and  regular  process,  is 
sufficient  to  preclude   him   from   afterwards  objecting  to   it   as 

'  Com&tock  V.  Smitl;,  26  Miss,  306.  ^  Summers  v.  Moore,  2  ]\IcLean,  59; 

=*  Smilli  V.  "VViirden,  10  Pa.  St.  424.  Armstrong  v.  Jackson,  1  Blackf.  310; 

s'lhurle}'  V.  O'Connell,  48  Mo.  27.  Childs  v.  McCbesney,  20  Iowa,  943; 

Mietd   V.   Ilcasley.  2  B.  Mou.  254;  Willard  v.  Whipple,  40  Vt.  219. 

Epley    V.     Witlieiovv,    7  Walls,  103;  «  Spragg  v.  Shriver,  23  Pa.  St.  283. 

Car)-  \.  Wallace,  7  Watts,  394;  Mayor  "'  McCkire  v.  McCormick,  5  Blackf. 

V.  Deer,  4  J.  J.  MaisL.  585;   Wood  v.  129;  Nes$  v.  Van  Sweariugen,  10  S.  «.\: 

Colviii,  2  Hill,  556;  Jackson  v.  Cald  R.  144;   Crawford  v.  Ginn,  35  Iowa, 

well,  1   (;ow.    022;   Sanderson  v.  Bal-  543. 

lance,  2  Jones,  Eq.  322;  Wendell  v.  «  Lay  v.  Neville,  25  Cal.  545. 

"Van   Rensselaer,    1   Johns.  Cli.    354  ;  »  Cornelius  v.  Buford,  28  Tex.  202. 

Moffitl  V.  Adams,  60  Iowa,  44;  jMiles  >''  Draper  v.  Draper,  5  Harring.  358. 
V.  Lefi,  60  Iowa,  168. 


1190  The  Law  of  Estoppel. 

irregular.*  Nor  can  he  object  to  a  want  of  appraisement  when  he 
refuses  to  choose  an  appraiser,  and  tells  the  officer  that  there  is 
no  appraisement  necessary.*  Where  a  party  uses  property  as  her 
own,  afterwards  marries  and  treats  the  property  as  her  husband's, 
she  cannot  object  to  its  being  taken  for  her  husband's  debts  ;* 
nor  can  a  debtor  set  up  an  outstanding  title  to  defeat  that  of  the 
purchaser.*  A  creditor  who  has  a  levy  and  sale  set  aside  on  the 
ground  that  the  debtor  has  no  title  to  the  property,  cannot  claim 
it  thereafter  by  virtue  of  such  seizure  and  sale  ;^  nor  can  a  pur- 
chaser question  the  validity  of  the  decree,"  or  quash  for  irregu- 
larity of  the  sale,''  or  failing  to  object  to  the  confirmation  of  the 
gale  by  the  court,  cannot  complain  of  the  sale  nor  resist  payment 
of  the  purchase  money/  nor  deny  the  validity  of  an  incumbrance 
if  the  sale  is  made  subject  to  it ;"  or  where  a  purchaser  is 
informed,  by  the  attorney  of  a  party  interested,  that  the  prop- 
erty will  be  sold  free  from  such  party's  claims,  he  cannot  after- 
wards levy  on  the  property,  and  the  officer  levying  is  a  trespasser.'" 
But  where  the  writ  is  void,  and  confers  no  power  whatever  upon 
the  officer,  there  is  no  estop))el."  Filing  a  bill  of  injunction 
waives  any  irregularity.'^  Where  a  vendor  selling  property 
brings  suit  to  recover  the  purchase  money,  and  recovers  a  judg- 
ment for  the  amount  due,  issues  execution,  and  causes  a  levy  ;ind 
sale  to  be  made  of  the  property,  the  officer  sells  it  free  from  uny 
claim  of  his  for  the  purchase  money,  he  elects  to  sell  just  such  a 

^  Catlin  V.  Mercliants'  Bank,  30  Vt.  Hubbert  v.   McCullum,    6  Ala.   221 ; 

572;   Manner  v.  Coon,  16   Wis.  465;  Ilaily  v.  Cuney,  3  Strobh.  49;  Janson 

Gillett  V.  Edgar,  22  Iowa,  293.  v.  Tudor,  3   B.  Monr.  355;   Miller  v. 

^Desplate   v.    St.   Martin,   17    La.  Wilson,   32  Md.  297;    McKnigbt    v. 

Ann.  91.  Gordon,  13  Rich.  Eq.  222. 

3  Quick  V.  Staines,  1  B.  &  B.  263.  ^  Bacon  v.  Kimmell,  14   Mich.  201. 

*  Strickey  v.  Crosswell,  12  Rich.  Eq.  «  Howe  v.  Whited,  21  La.  Ann.  495; 

222;  Sumner  v.  Palmer,  10  Rich.  L.  Thomas  v.  McKay,  5  Bush,  475. 

88;   Dunlapv.  Cook.  18  Pa.   St.  404;  '' McKinneys  v.  Scott,  1  Bibb,  155. 

Masscy   v.    Thompson,   2   N.   &   Mc.  '^  Huber  v.  Armstrong.  7  Bush,  590; 

I05;llarrisv.  Doe,  3  lud.  494;  Richards  Lassell  v.  Powell,  7  Coldw.  277. 

V.  Alden,  1  Grant  C.  347;   Jackson  v.  »  Ilorton  v.  Davis,  26  K  Y.  495. 

Bush,  10  Johns.  223,  ONeilv.  Duncan,  '"  McElrath  v.  Kintzing,  5  Pa.  St. 

4    McCord,     246;     Cooper     v.     Gal-  336. 

brailh,   3  Wash.   500;   McDonald    v.  "  Bennett  v.  Gamble,    1   Tex.  124; 

Badger,  23  Cal.  399;  Farnum  v.  Perry,  Howe  v.  Blandin,  21  Vt.  375;  Gohegan 

43  Vt.  473;  Hale  v.  Miller.  5  Vt.  211;  v.  Ditto.  2  Mete.  (Ky.)  483. 

Suavely    v     Waguer,   8  Pa.  St.   275,  ''^  Overton  v.  Perkins,  10  Yerg.  328. 


Ratification.  1191 

title  as  liis  purchaser  would  have  obtained  from  him  had  he  com- 
plied with  his  contract  of  purchase.  Having  thus  made  his 
election  to  sell  the  property,  he  is  bound  by  it.' 

§  1060.  A  judgment  creditor  who,  with  fall  knowledge  of  the 
facts  of  the  case,  receives  and  appropriates  to  his  own  use  the 
avails  of  a  compromise,  made  by  his  agent  or  attorney  on  his 
behalf,  is  bound  thereby,  and  cannot  be  permitted  afterward  to 
deny  the  authority  of  such  agent  or  attorney.^  An  affirmance 
and  ratification  of  an  act,  with  full  knowledge  of  all  its  circum- 
stances, operates  as  a  waiver,  and  the  party*  is  estopped  from 
afterwards  charging  that  it  was  wrongfully  or  fraudulently  done. 
Thus,  where  a  party  leaves  negotiable  securities  with  another  for 
safe  keeping  ;  and  such  depository  fraudulently  negotiates  the 
same,  and  uses  the  proceeds,  if  the  depository  with  ■  knowledge 
of  this  fact  accepts  a  promissory  note  for  the  value  of  such 
securities,  and  collects  the  interest  on  such  note,  the  acceptance 
of  the  note  creates  a  new  contract,  and  is  a  waiver  and  estops 
the  party  from  maintaining  an  action  against  his  agent  for 
fraudulently  contracting  the  debt.^  If  a  person  enters  into  a 
covenant  to  pay  for  personal  property,  the  possession  of  which 
he  acknowledges  to  have  received,  he  will  be  estopped  to  deny 
the  receipt  of  it,  because  it  is  a  fact  which  he  must  have  known. 
But  if  he  recite  that  the  vendor  had  title,  he  may,  notwithstand- 
ing, show  the  contrary  ;  because  it  is  apparent  that  this  allegation 
must  have  come  from  the  vendor,  and  that  the  vendee  could  not 
otherwise  have  known  its  truth.*  A  party  claiming  to  be  the 
owner  of  goods  by  purchase  and  delivery,  is  estopped  by  the  levy 
of  an  execution  in  his  favor  upon  the  same  goods  as  the  property 
of  the  defendant  in  the  execution.^ 

§  1061.  Acquiescence  in  a  transaction  may  bar  a  party  of  his 

>  Love  V.  Jones,  4  Watts,  465;  R.  11.  «  paine  y.    Hibbard,   6    Wis.    175; 

Co.  V.  Jones,  59  Pa.  St.  433;  Fosdick  Knowlton  v.  Logansport,  75  Ind.  103. 

V.  Risk,  15  Ohio.  84;  McGee  v.  Mellon,  ^  Troup   v.  Appleman.  52  Md.  456. 

23  Miss.  585;   Mahoney   v.  Horan,  53  *  Miller  v   Bagwell,  3  McCord,  429. 

Barb.  29;  Horbach  v.  Riley,  7  Pa.  St.  "  Langsdorf  v.  Field,  36  Mo.  441; 

81;  Bradley  v.  O'Donnell,  33  Pa.  St.  Bradley  v.    Richardson,   23  Vt.  720; 

281;   Simond's  Estate,  19  Pa.  St.  439;  Berry    v.    Boyce,    a   Rich.    Eq.  302; 

Freeby  v.  Tupper,  15  Ohio,  467.  Wriglit  v.    Langenour,   55  Cal.  280; 

Woods  V.  Rocebj,  32  La.  Ann.  210. 


1192 


The  Law  of  Estoppel. 


relief  in  a  very  short  period.  Thus,  if  one  has  knowledge  of  an 
act,  or  it  is  done  with  his  full  approbation,  he  cannot  afterwards 
have  relief.  He  is  estopped  by  his  ac(piiescence,  and  can  not 
undo  that  whicli  has  been  done."  So,  if  a  party  stands  by,  and 
sees  another  dealing  with  ])roperty  in  a  manner  inconsistent  with 
his  rights,  and  makes  no   objection,  he  cannot  afterwards  have 


>  Kent  V.  Jackson,  14  Beav.  384; 
Styles  V.  Guy,  1  II.  &  T.  523;  Lcedt*, 
&c.  V.  Amberst,  2  Ph.  117;  Associa- 
tion v.Siddall,  3  D.  F.  &  J.  73;  Ciozier 
V.  Acer,  7  Paige,  137;  Davis  v.  .James, 
4  J.  .1.  Marsli.  81;  Pollard  v.  Rogers, 
4  Call,  239;  Skottowe  v.  Williams,  3 
D.  F.  Sz  J.  535;  Moffatt  v.  Wiuslow,  7 
Paige,  124;  Sadler  v.  Robinson.  2 
Stew.  520;  Ayresv.  Mitchell,  11  Miss. 
383;  Moore  v.  Reed,  2  Ired.  Eq.  580; 
McNaughton  v.  Partridge,  11  Ohio, 
223;  Kniickolls  v.  Lee,  10  Humph. 
577;  Dougherty  v.  Dougherty,  7  N. 
J.  E.  G27;  Morgan,  in  re,  1  II.  &  Tw. 
328:  Graham  v.  R.  R.,  2  M.  &  G.  140; 
R.  R.  V.  Schuyler,  34  N.  Y.  30;  Ear- 
gale  V.  Shorlridge,  31  E.  L.  &  E.  44; 
Giymes  V.  Suunder^,  93  U.  S.  55;  Cole 
V.  Tibbius,  3  P.  AV'm.s.  289;  Addis  v. 
Campbell,  4  Beav.  411;  Lord  v.  Jeff- 
kins,  35  Beav.  7;  Ives  v.  North  Can- 
aan, 33  Conn.  402;  Vallctte  v.  Ben- 
nett, 09  111.  G32;  Coop  r  v.  Law,  6  C. 

B.  (N.  S.)502:  Banks  v.  Burnhnm,  01 
Mo.  70;  Miller  v.  Craig,  11  N.  J.  E. 
175;  Grant  v.  Davenporl,  18  Iowa, 
178;  .loucs  v.  lliggins,  L.  R.  2  Eq. 
538:  Stallord  v.  Siairord,  1  De  G.  & 
J.  193:  Louisville  v.  Bank,  3  B.  Mon. 
138;  Prendergrast  v.  Turton,   1  Y.  & 

C.  98;  Navigation  Co.,  in  re,  0  .Tur. 
(N.  S.)  975;  Park  v.  R.  R.  Co.,  23  Ind. 
567;  Perretfs  Case,  L.  R.  15  Eq.  250; 
Oakes  v.  Turquand,  L.  R.  2  II.  L. 
327;  Ilarcourt  v.  AVhite,  0  Jur.  (N. 
S.)  1087;  Kentv.  Freehold,  L.  R.  3  Ch. 
App.  493;  Peek  v.  Gurncy.  L.  R.  13 
Eq.  79;  Bright  v.  Legeiton,  0  Jur. 
(N.  S.)  1179;  Ormes  v.  Beadel,  2  Gill. 


160;  Smallcombe's  Case.  L.  R.  3  Eq. 
709;  Clark  V.  Hart,  5  Jur.  (N.  S.)447; 
Brothel  hood's  Case,  31  Beav.  365; 
Sibbering  v.  Baccaring,  3  De  G.  &  S. 
735;  Randall  v.  Errington,  10  Ves. 
426;  Flagg  v.  Mann,  2  Sumn.  486; 
Blennerhassett  v.  I)a}^  2  B.  &  B. 
104;  Cholmondelej^  V.  Clinton,  2Mer. 
361;  Ilonner  v.  Morton,  3  Russ.  65; 
Shackelford  v.  Hundley,  1  A.  K. 
ilarsh.  495;  Austin  v.  Chambers,  6 
CI.  &  F.  1;  Cockerell  v.  Cholmeley, 
Taml.  435;  Charter  v.  Trevelyu,  11 
CI.  &  F.  714;  Cockell  v.  Taylor,  15 
Beav.  122;  Burrows  v.  Wales,  5  D. 
M.  &  G.  233;  Lloyd  v.  Atwood,  3  D. 
&  J.  614;  Savory  v.  King,  5  H.  L. 
627;  Shipp  v.  Swan,  2  Bibb,  82;  Bright 
v.  Legerton,  2  D.  F.  &  J.  017;  Ass'n 
V.  Sicidall,  3  D.  F.  &  J.  74;  Bullock 
V.  Downes,  9  II.  L.  1;  Berdoe  v. 
Dawson,  34  Beav.  603;  Wall  v.  Cock- 
erall,  10  II.  L.  229;  Vyvyau  v.  Vyv- 
yan,  30  Beav.  65;  Spackmun's  Case, 
34  L.  J.  Ch.  329;  Stewart's  Case,  L. 
R.  Ch.  App.  515;  Elsworth  v.  Els- 
worth,  33  Iowa,  164;  Charlston  v. 
Comm'rs,  109  ilass.  270;  Stanhope's 
Case,  L.  R.  1  Ch.  App.  161;  Munch 
v.  Cockcrall  5  M.  &  C.  178:  Mont- 
fort  V.  Cadigan,  17  Ves.  489;  Taylor 
V.  R.  R.  Co.,  4  AYoods  C.  C.  575; 
Land  Co.  v.  Tilton,  19  F.  R.  73; 
Manf'g  Co.  v.  Funge.  109  U.  S.  651  ; 
Smith  V.  Pettee,  70  N.  Y.  13;  Wool- 
seJ^  in  re,  95  N.  Y.  135;  Cooper,  in 
re,  93  N.  Y.  507;  Parkway,  in  re,  67 
How.  Pr.  341;  Ins.  Co.  v.  Swank, 
102  Pa.  St.  i;;  Myers  v.  Ins.  Co.,  33 
Ilun,  321. 


Acquiescence. 


1193 


relief.  His  silence  permits  or  encourages  others  to  part  with 
their  money  or  property,  and  he  caimot  complain  that  his  inter- 
ests are  aflFected.     His  silence  is  acquiescence  and  it  estops  him.' 

§1062.  To  fix  acquiescence  upon  a  party,  it  must  unequivo- 
cally appear  that  he  knew  or  had  notice  of  the  fact  upon  which 
the  alleged  acquiescence  is  founded,  and  to  which  it  refers.^ 
Acquiescence  imports  and  is  founded  on  knowledge.  Acquies- 
cence can  not  arise  unless  the  party  against  whom  it  is  set  up  is 
aware  of  his  rights.  A  person  cannot  acquiesce  in  w'hat  he  is 
ignorant  of,  nor  can  he  be  bound  by  acquiescence  unless  fully 
apprised  as  to  his  rights  and  all  the  material  facts  and  circum- 
stances of  the  case.' 


'  Jordan  v.  Money,  5  H.  L.  C.  185; 
Reunie  v.  Young,  2  De  G.  &  J. 
142;  Stafford  V.  Stafford,  1  D.  G.  & 
J.  202;  Phillipson  v.  Gatly,  7  Hare, 
523;  Leeds  v.  Amherst,  2  Phil.  117; 
Skottowe  V.  Williams,  3  D.  F.  &  J. 
535;  Association  v.  Siddall,  2D.  F.  & 
J.  73. 

2  Randall  v.  Errington,  10  Ves.  426; 
Spackman's  Case,  34  L.  J.  Ch.  321; 
Stanhope's  Case,  L.  R.  1  Ch.  App. 
161 ;  Stewart's  Case,  L.  R.  1  Ch.  App. 
514;  Hiukson  v.  Morrison,  47  Iowa, 
167. 

3  Russell  V.  Errington,  10  Ves.  426; 
Blennerliassett  v.  Day,  2  B.  &  B.  104; 
Cholmondonley  v.  Clinton,  2  Mer. 
361;  Homer  v.  Morton,  3  Russ.  65; 
Cockerel  1  v.  Cholmely,  Taml.  435; 
Austin  V.  Chambers,  6  CI.  &  F.  1; 
Charter  v.  Trevelyan,  11  CI.  &  F. 
714 ;  Cockell  v.  Taylor,  15  Beav. 
122;  Burrows  v.  Walls,  5  D.  M.  &  G. 
233;  Lloyd  v.  Atwood,  3  D.  c%  J.  614; 
Savery  V.  King,  5  H.  L.  627;  Bright 
V.  Legerton,  2  D.  F.  &  J.  617;  Life 
Ass.  V.  Siddall,  3  D.  F.  &  J.  74;  Bul- 
lock v.  Downcs,  9  H.  L.  1;  Wall  v. 
Cockerell,  10  H.  L.  229;  Berdoe  v. 
Dawson,  34  Beav.  603;  Vyvian  v. 
Vyvian,  30  Beav.  65;  Spackman's 
Case,  34  L.  J.  Cb.  329;  Stewart's  Case, 


L.  R.  1  Ch.  App.  514;  Flagg  v.  Mann, 
2  Sumn.  486;  Shackelford  v.  Hand- 
ley,  1  A.  K.  Marsh.  498;  Shipp  v. 
Swan,  2  Bibb,  82;  Garvin  v.  Lewis,  15 
Miss.  24;  Cherry  v.  Nemson,  3  Yerg. 
369;  Murray  v.  Palmer,  2  S.  &  L.  486; 
Dunbar  v.  Tredennick,  2  B.  &  B. 
317;  Potts  V.  Surr,  34  Beav.  543; 
Smith  V.  Kay,  7  H.  L.  C.  750;  Athen- 
aeum v.  Pooley,  3  D.  &  J.  299;  Wat- 
ers V.  Thorn,  22  Beav.  547;  Cockerell 
v.  Taylor,  15  Beav.  125 ;  Roberts  v. 
Tunstall,  4  Har.  257;  S.tump  v.  Gaby, 

2  D.  M.  &  G.  623;  Salmon  v.  Cutts, 
4  D.  &  S.  132;  Mulhallen   v.    Maram, 

3  D.  &  W.  317;  Rainsford  v.  Rains- 
ford,  Spears  Ch.  385;  De  Montmorency 
V.  Devereux,  7  CI.  &  F.  188;  Wedder- 
burn  V.  Wedderburn,  2  Keen,  722; 
Molony  v.  Estrange,  1  Beat.  413; 
Roche  V,  O'Brien,  1  B.  &  B.  338;  Say 
V.  Barwick,  1  V.  &  B.  195;  Wood  v. 
Downes,  18  Ves.  128;  Gowland  v.  De 
Faria,  17  Ves.  20;  Purcell  v.  Mo- 
Namara,  14  Ves.  91;  Morse  v.  Royal, 
12  Ves.  355;  Murray  v.  Palmer,  2  S. 
&  L.  480;  Walker  v.  Simonds,  3  Sw. 
1;  Chesterfield  V.  Jansen,  2  Ves.  125; 
Crowe  V.  Ballard,  2  Cox,  253;  Cole  v. 
Gibbons,  3  P.  Wms.  290;  Wake  v. 
Wake,  1  Ves.  Jr.  335;  Cann  v.  Cann, 
1  P.  Wms.  727;  Coal  Co.  v.  Sherman, 


1194 


The  Law   of  Estoppel. 


§  10C3.  AVhen  a  man  v/itli  full  knowledi^e,  or  at  least  \vitli 
sufficient  notice  or  means  of  knowledge  of  liis  rights,  and  of  all  tlie 
material  circumstances  of  the  case,  freely  and  advisedly  doesany- 
thing  which  amounts  to  the  recognition  of  a  transaction,  or  acts 
in  a  manner  inconsistent  with  its  repudiation,  or  lies  by  for  a 
considerable  time,  and  knowingly  and  deliberately  permits  another 
to  deal  with  property,  or  incur  expense,  under  the  belief  that  the 
transaction  has  been  recognized,  or  freely  and  advisedly  abstains 
for  a  considerable  lapse  of  time  fi'om  impeaching  it,  tliere  is 
acquiescence,  and  the  transaction,  although  originally  impeachable, 
becomes  unimpeachable  in  equity.'  If,  for  instance,  a  man  after 
discovering  that  the  representations  in  a  prospectus,  on  the  faith 
of  which  he  has  purchased  shares  are  false,  deals  with  the  shares 
as  owner,  by  instructing  a  broker  to  sell  them,''  or  concurs  in  the 


20  Md.  117;  Williams  v.  Reed,  3 
Masou,  40.");  Butler  V.  Haskell,  4  Dess. 
651;  MeCormick  V.  Malin,  5  Blackf. 
509;  Biodduc  v.  Call,  3  Call,  546; 
Boyd  V.  Hawkins,  2  Dev.  Eq.  195; 
Adams  v.  Bradley,  1  J.  &  W.  51 ;  Ed- 
wards V.  Morgan,  McC.  541;  Pusey 
V.  Desbonvrie,  3  P.  Wms.  315;  Dillon 
V.  Parker,  1  Sw.  359;  Kidney  v.  Cous- 
maker,  12  Yes.  136;  Kelly  v.  Sohui,  9 
M.  &  W.  54;  Townsendv.  Crowdy,  8 
C.  B.  (N.  S.)  477;  Sill  v.  Sill,  31  Kans. 
248. 

'  Duke,  &c.  V.  Lord  Amherst,  2  Phil. 
117;  Lee  v.  Porter.  2  Johns.  Ch.  2(38; 
Perrine  v.  Dunn,  3  Johns.  Ch.  508; 
Taylor  v.  Cole,  4  Munfd.  351;  Lee 
V.  Monroe,  7  Crauch,  366;  Ilentz 
V.  R.  R.,  13  Barb.  647;  Selsey 
V.  Rhodes,  1  BUgli  (N.  S.)  1;  Bellew  v. 
Ru.ssell,  1  B.  &B.  96;  Blennerhassett 
V.  Day,  2  B.  &  B.  118;  Vigers  v.  Pike, 
8  CI.  &  F.  652;  Charter  v.  Trevelyan, 
11  CI.  &  F.  714;  Champion  v.  Rigby, 
Taml.  421;  Maden  v.  Vcevers,  5  fJeav. 
511;  Naglo  v.  Baylor,  3  Dr.  &  W.  00; 
Edwards  v.  Meyrick.  2  Ha.  75;  Loader 
V.  Clark,  2  Mac.  &  G.  387;  Plumb  v. 
Flint,  2  Anst.  432;  Evans  v.  Bicknell, 
6  Yes.    174;    Barnett  v.    Weston,  12 


Yes.  130;  Harper  v.  Faulder,  4  ]\Iad. 
129;  Meux,  in  re,  1  Gl.  &  J.  110;  Hil- 
ton V.  Fonda,  86  N.  Y.  339;  Bank  v. 
St.  Joseph,  46  jNIich.  520;  Lane  v. 
Mar.sh,  33  La.  Ann.  554;  Dardin  v. 
Hanill,  10  Lea,  421 ;  Wright  v.  Wright. 
72  N.  Y.  149;  Walrup,  in  re.  1 
IMcCrary.  70;  Stone  v.  Godfrey.  5  D. 
M.  &  G.  76;  Lyddon  v.  Moss,  4  D.  & 
J.  104;  Dimsdale  V.  Dimsdale.  3  Drew, 
556;  Farraut  v.  Blaucaford,  1  D.  J. 
&  S.  107;  Archbold  v.  Scully,  9  H. 
L.  360  ;  Pleiiderleath  v.  Fraser,  3  Y. 
&  B.  174;  Bernal  v.  Lord  Donegal,  3 
Dow.  138;  Bayne  v.  Ferguson.  5  Dow. 
151;  Pearson  v.  Benson.  28  Beav.  598; 
Gresley  v.  Mousley.  31  L.  J.  Ch.  543; 
Ernest  v.  Yivian,  33  L.  J.  Ch.  513; 
AYall  V.  Cockerell,  3  D.  F.  &  J.  742; 
Yerrierv.  Gillou,  14  Phila.  2;  Lengan 
V.  Hazlewood,  11  Lea,  539  ;  Yogel  v. 
Breed.  14  111.  App.  538;  [McKcllop  v. 
Jackman.  50  Yt.  71  ;  Sehenck  v. 
Sautter,  73  Mo.  46;  Turner  v.  Flinn. 
72  Ala.  532  ;  Guicharde  v.  Brande, 
57  Wis.  534;  Davis  v.  Handy,  37  N. 
H.  05;  ^Y■wman  v.  Mueller,  16  ^'eb. 
523;  Williams  v.  Wells,  62  Iowa.  740. 
=■  Briggs,  in  re,  L.  R.  1  Eq.  483. 


Acquiescp:nce.  1195 

appointment  of  a  committee  of  investigation  into  the  affairs  of 
the  company  on  belialf  of  the  shareholders/  there  is  acquiescence. 
So  wliere  a  party,  with  full  knowledge  of  the  misrepresentations 
alleged  to  have  been  made,  by  his  conduct  agrees  to  treat  the 
transaction  as  binding,  he  is  precluded  in  equity  from  insisting 
on  the  misrepresentation  in  a  suit  for  specific  performance."  And 
where  plaintiffs  sought  to  avoid  an  agreement  for  the  lease  of  a 
mine,  on  the  ground  of  fraudulent  misrepi^sentation  of  its  value, 
it  was  held  that  having  .continued  to  work  the  mine  after  full 
knowledge  of  all  the  circumstances  of  the  fraud,  they  were  not 
entitled  to  relief.* 

The  equitable  rule  as  to  acquiescence  applies  with  peculiar 
force  to  the  case  of  property  which  is  of  a  speculative  character, 
or  is  subject  to  contingencies,  and  can  only  be  rendered  pro- 
ductive by  a  large  and  uncertain  outlay.*  Thus,  a  patentee  may, 
by  long  acquiescence  in  the  use  of  his  patent  by  the  public,  be 
estopped  from  setting  up  his  rights  under  it.^  Cases  frequently 
arise  where  a  court  of  equity  will  refuse  the  prayer  of  the  com- 
plainant for  an  account  of  gains  and  profits,  on  the  ground  of 
delay  in  asserting  his  rights,  even  when  the  facts  proved  render 
it  proper  to  grant  an  injunction  to  prevent  future  infringement. 
Relief  of  the  kind  is  constantly  refused  even  where  the  right  of 
the  party  to  an  injunction  is  acknowledged  because  of  an  infringe- 
ment, as  in  case  of  acquiescence  or  want  of  fraudulent  intent." 

§  1064.  This  principle  applies  to  the  representatives  of  the 
party  who  has  acquiesced  in  a  particular  transaction  and  a  remain- 

>  Lawrence's  Case,  L.  R.  2  Ch.  App.  F.  &  J.  310. 
424.  *  Pitts    V.    Hall,    2    Blatchf.    229; 

■^  McBryde  v.    Weekes,    22    Beav.  Wyeth  v.  Stone,  1  Story,  273;  Carlton 

533.  V.  Atwood.  2  A.  L.  T.  129;  Seymour 

a  Vigers  v.  Pike,  8  CI.  &  F.  562.  v.  Osborne,  11  Wall.  516;   McLean  v. 

*  Norway  v.    Rowe,    19   Ves.   144;  Fleming,  96  U.  S.  245. 
Small   V.    Attwood,   6   CI.  &  F.  232;         <>  Harrison  v.  Taylor,  11  Jur.  (N.  S.) 

Prcadergast  v.    Turton,    1    Y.    &  C.  4U8:   Moet  v.  Conston,  33   Beav.  580; 

C.  C.  98;  Lovell  v.  Hi(ks,  2  Y.  &  C.  Edelston  v.  Edelston,  1  De  G.  J.  &  S. 

46;   Jennings  v.  Broughton,  5  D.   M.  185;   Millington   v.    Fox,  3  M.  &  Cr. 

&  G.  140;  Clegg  V.  Edmondson,  8  D.  348;  Wyeth  v.    Stone,  3  Story,  284; 

M.  &  G.  787;   Clements  v.  Hall.  2  D.  Beard  v.  Turner,  13  L.  T.  (N.  S.)  747; 

<fcj.  173;  Grosvenor  v.   Sherratt,  28  Estcourt  v.   Estcourt,    L.   R.,16  Ch. 

Beav.  059;  Whalley  v.  Whalley,  2  D.  270. 


1196  The  Law  of  Estoppel. 

derman,  and  between  trustee  and  cestui  qui  trust,  even  in  cases 
of  express  trust.' 

§  10G5.  Ratification  or  election  once  made,  expressly  or 
impliedly',  is  irrevocable,  and  binds  not  onl}'  the  party,  but  all 
claiming  under  him."  Thns,  parties  wlio  have  given  a  mortgage 
in  exchange  for  a  promissory  note  against  their  father  are  estopped, 
after  having  deliberately  presented  the  note  as  a  claim  in  their 
favor  against  their  father's  estate  and  had  it  allowed,  from  defend- 
ing against  the  foreclosure  of  such  mortgage  upon  any  assertion 
that  the  same  was  procured  by  means  of  any  false  representation, 
the  falsify  of  which  was  known  to  them  before  presenting  such 
claim.  Having  treated  the  note  as  their  own,  and  thus  asserted 
an  election  to.afhrm  the  original  exchange,  they  are  not  at  liberty, 
when  called  upon  to  pay  the  mortgage,  to  turn  round  and  assert 
a  right  to  elect  again  and  in  away  to  stulify  their  first  election.' 

§  1006.  Impeachable  transactions  may  be  rendered  valid  by 
act  of  confirmation,  or  acquiescence  for  a  great  length  of  time. 
Acquiescence  for  a  long  time  in  an  improper  sale  will  disable  a 
person  from  coming  into  a  court  of  equity  to  set  it  aside.  To  fix 
acquiescence  upon  a  party  it  should  unequivocally  appear  that  he 
knew  the  fact  on  which  the  supposed  acquiescence  is  founded, 

>  Walmcsly  v.  Booth,  2  Atk.  25;  Luist,3Bro.  C.  C.  88;  Northumberland 
Bellcw  V.  Russell,  1  B.  &  B.  96;  Shan-  v.  Ayleslord,  Arab.  540;  Stnitfoid  v. 
noil  V.  Bradstreet,  1  Sch.  &  L.  73;  Powell,  1  B.  &  B.  23;  Troup  v.  Apple- 
Walker  V.  Symonds.  3  Sw.  04;  Bur-  man,  52  ]\[d.  456;  Comstock  v.  Smith, 
rows  V.  Wails,  5  D.  M.  &  G.  233;  26  Mich.  306;  Leonard  v.  Cromelin,  1 
Farrant  v.  Blauchford,  1  D.  J.  &  S.  Ed.  Ch.  206;  Sloan  v.  Holcomb,  20 
107;  Liehmau  v.  Ilarcourt,  2  Mer.  Mich.  153;  Buck  v.  Jones,  16  Tox. 
.520;  .folinson  v.  Perkins,  57  Tenn.  461  ;  Meeliam  v.  Forrester,  52  N. 
367.  Y.    277  ;    Clark    v.    Van    Riensdyk, 

-  Penn   v.   Guggenheimer,    76    Va.  9   Cranch,    158;   Seago   v.    Mattin.   6 

839;  Pence  v.  Lang<lon,  99  U.  S    578;  Heisk.   308;   Lee  v.  Fontain,  10  Ala. 

Russell    V.     Bell.    8   M.    &    W.   277;  755;   Ins.    Co.  v.    McJIillan,  29  Ala. 

Campbell   v.   Fleming.  1  A.  &  E.  40;  147;    Crawford   v.    Barkley,    18   Ala. 

Richardson  v.  Dunn,  2  Q.  B.  218;  .lor-  270;  Jones  v.  Atkinson,  68  Ala.  167; 

dan  V.  Noton.  4  M.  &  W.  155;  Brewer  Mattow  v.  Cox,  25  Tex.  583;  Paine  v. 

V.  Sparrow,  7  B.  &  C.  310;   Burns  v.  Wooley.  80  Ky.  568. 
Morris,    4    Tyrwh.    486  ;     Bureh    v.  -  Sloan   v.   Holcomb,  29  Mich.   153; 

Wright,  1  T.  R.  378;  Marshall  v.  Nav.  White  v.  Rowland,  67  Ga.  546;  S.  C, 

Co.,    L.    R.   7   Q.   B.  166;  Harvey  v.  44  Am.  R.  731. 
Ashley,  3  Atk.  607;  Butrieke  v.  Broad- 


Ratification.  1197 

and  to  which  it  refers.  Laches  do  not  apply  to  a  body  of  credi- 
tors, to  whom  relief  will  be  j^rauted  when  it  would  be  refused  to 
an  individual.'  Although  acquiescence  in  an  improper  sale  may 
have  the  effect  of  not  enabling  a  party  to  set  it  aside,  it  neverthe- 
less will  not  be  sufficient  to  induce  a  court  of  equity  to  exercise 
its  discretionary  power  of  compelling  specific  performance  of  the 
agreement  to  scll.^ 

§  1067.  Where  property  has  been  sold  by  mistake,  as  being 
the  property  of  another  to  whom  the  proceeds  were  paid,  affirms 
the  sale  ;  if,  knowing  the  facts,  he  elects  to  accept  from  the  latter 
the  money  received  for  such  property,  and  actually  receives  a 
part  thereof,  although  no  time  is  specified  for  the  payment  of  the 
balance  ;  and  he  cannot  afterward  maintain  an  action  for  the 
conversion.^  Acceptance  of  part  payment  is  an  estoppel  where  a 
part  of  a  claim  presented  to  a  legislative  body  is  allowed  and  the 
claimant  takes  it,  he  is  thereby  estopped  from  suing  for  the  bal- 
ance." When  a  sum  appropriated  by  the  legislature  to  a  creditor 
of  the  state  expressly  in  full  for  his  demand,  is  received  and 
drawn  from  the  treasury  by  him,  he  is  estopped  from  setting  up 
any  further  claim  on  account  of  the  same  matter.*  Especially 
when  the  amount  due  is  in  dispute,  and  the  state  offers  the  sum 
with  a  view  to  a  final  settlement,  and  the  other  party  accepts  it.' 
If  a  claimant  voluntarily  comes  before  a  board  to  audit  and 
approve  claims,  and  a  law  is  afterwards  passed  allowing  such 
claims  and  ordering  them  paid  on  presentation  of  a  voucher  with 
the  comn\issioner's  signature  ;  the  party  presents  his  voucher  and 
receives  the  sura  so  allowed  by  the  board,  he  is  estopped  uy  iiis 
acceptance  from  recovering  a  bahmee  which  would  remain  on  an 
assumption  of  the  validity  of  liis  original  contract.'  80  under  a 
law  providing  that  otffcers  of  the  army  might  be  discharged  on 

1  Wichcofe  v.  Lawrence,  3  V^es.  740;  sing  v.  State,  14  Wis.  502,   Baxter  v. 

York   Co.    y.    Mackenzie,    8   Bro.  P.  JState,  9  Wis.  ^9;   Tyler   v.  Chevalier, 

C.42.  50  Ga.  494;  Cruger  v.  IJ.  S,,  11  Ct.  of 

-  Salmon  v.  Cntts,  4  De  G.  &  S.  125.  CI.  766;  J.  S.  v.  Martin,  94  U.  S.  400; 

^DufE  V.  Winecoop,  74  Pa.  St.  300;  U.  S.  v.  Justice,  14  Wall.  585;    J.  S. 

Scott  V.  Gamble,  iO  N.  J.  E.  218.  v.    Child,   12    Wall.  Sdi;  Caianan   v. 

*  Pierce    v.    Keefe,    ll     Wis.    180;  Mayor,  6   Daly,  280;   Dold    v.   J.  S., 

Hamilton   Co.  v.  Bailey,  12   iS^eb.  56.  13  Ct.  of  Cl.  97;  R.  R.  Co.  v.  J.  S., 

^  Sholes  V.  State,2  Chand.  ^  Wis.)  182.  103  U.  S.  173. 

6  Calkins  v.  State,  i3  Wis.  389,  Mus  •  U.  tJ.  v.  Adams,  7  Wallace,  463. 


1198  The  Law  of  Estoppel. 

receiving  a  years'  pay,  accepting  a  year's  pay  estops  a  party  from 
questioning  the  regularity  of  the  discharge.' 

§  1068.  If  one  have  several  claims  against  anotlier,  and  by  a 
renunciation  of  one  claim  induces  a  settlement  of  the  balance,  he 
will  be  bound  by  such  settlement."  The  partial  allowance  of  a 
claim  and  a  rejection  of  part  or  a  compromise  of  the  same,  where 
a  party  accepts  the  amount  allowed,  and  gives  a  receipt  in  full, 
he  can  not  assert  a  separate  claim  for  interest  or  damages,  accrued 
at  the  time  of  such  settlement  and  payment.*  Thus,  where  one, 
entitled  to  an  award  for  damages,  for  the  taking  of  his  property 
for  public  purposes,  accepts  the  sum  awarded,  and  gives  a  receipt 
acknowledging  payment  in  full  of  its  amount,  the  right  to  interest 
is  thereby  waived,  and  an  action  to  recover  the  same  can  not 
thereafter  be  maintained  against  the  city  ;  and  this,  although  the 
claimant  demands  payment  of  interest  at  the  time  and  protests 
against  the  refusal  to  pay  the  same.  Interest  in  such  case  is  given 
as  damages  for  non-payment  or  detention  of  the  money  awarded, 
and  is  only  to  be  recovered  with  the  principal  by  action  ;  it  does 
not  constitute  a  debt  capable  of  a  distinct  claim.  Acceptance, 
therefore,  without  action  of  the  sum  awarded,  in  full  payment  of 
the  principal,  bars  an  action  for  such  damages.*  So  the  silent 
acceptance  by  an  official  of  his  salary  as  reduced  by  the  proper 
legislative  body,  whether  city,  county,  or  state,  is  an  implied 
M'aiver  and  estops  him  from  claiming  more'  upon  the  same  prin- 
ciple. Altliough  an  act  be  unconstitutional  and  void,  it  will 
operate  as  an  estoppel  upon  the  party  applying  for  it,  and  pro- 
curing its  passage  and  accepting  its  benefits."  And  statements  in 
private  acts  or  laws  are  binding  on  the  parties  whose  interests 
are  intended  to  be  affected  by  them.' 

'  Hildebum    v.    U.    S.,   13  Ct.    of  *  Rau  v.  Little  Rock,  34  Ark  303; 

CI.  62.  Thomas  v.  Supervisors,  45  Mich.  479. 

«  Neal  V.  Fiekl,  G8  Ga.  534.  «  Robiasou    v.    Bank,    18    Ga.    65; 

3  Murphy   v.  U.  S.,  104  U.  S.  464;  Ferguson  v.   Laudrum,  5  Bu.sh,  230; 

Andrews  v.  U.  S.,  16  Cl.  of  CI.  265;  Gary  v.  Whitney,  48  Me.  516;  Coleman 

.Tessup  V.  Spears,  38  Ark.  457;  Gibson  v.  Morrison,  1  A.  K.  Marsh.  400. 

V.  Hall,  57  Te.\.  405;  Brazier  v.  Ban-  'Brett   v.  Beales,  Moo.  &  M.  421; 

ning,  20   Pa.  St.  348;  Looby  v.  West  Beaufort    v.     Smith,   4    E.xchq.   470; 

Troy,  24  Hun,  78.  Carnarvon  v.  Villebois,  13  U.  &  W. 

*  Cutter  v.  Mayor,  &c.,  92  N.  Y.  13;  Taylor  v.  Parry,  1  M.  &  G.  604. 
166. 


ACQUIESCEKCE.  1199 

§  1069.  A  party  by  accepting  the  proceeds  of  a  judicial  sale 
ratifies  such  proceedings  and  sale,  and  makes  the  same  conclusive 
on  liim.'  So  a  paitj  who  accepts  money  from  a  judgment  debtor 
is  estopped  to  deny  such  debtor's  right  to  redeem  f  and  by 
offering  to  redeem  thereby  affirms  the  sale.'  A  party  cannot  treat 
money,  collected  as  an  asset  of  an  insolvent  at  a  meeting  of  cred- 
itors, and  subsequently  hold  it  and  set  off  his  claim  against  it.  It 
belongs  to  all  the  creditors,  and  he  so  recognized  it."  So  a  party 
who  judicially  demands  the  proceeds  of  a  sale,  thereby  admits  its 
legality  and  is  estopped  from  impeaching  it.**  So  a  party  who 
receives  or  makes  payment  on  an  award  of  an  architect  or 
engineer,  with  knowledge  that  it  is  not  correct,  acquiesces  in  its 
correctness.*  So  one  who  purchases  land  for  less  than  its  value 
by  representing  that  there  is  a  dower  interest  in  it,  cannot  after 
such  purchase  proceed  to  oust  the  widow  of  her  right. ^  So  a 
widow  who  authorizes  a  statement,  that  she  would  not  claim 
dower  in  property  offered  for  sale,  will  be  estopped  from  there- 
after claiming  it.*  This  same  principle  applies  in  all  cases  where 
a  party  induces  another  to  purchase  land,  or  loan  money  thereon, 
by  stating  it  to  be  unincumbered,  and  withholding  notice  of  their 
claim  or  lien.*     A  party  cannot  blow  hot  and  cold.     A  party  by 

1  Latimer  v.  Rogers,  3   Head,  692;  v.  Thorpe,  92  Pa.  St.  346. 

Kindell  v.  Frazer,  9  Ilcisk.  727;  Kile  «  Hart  v.  Giles,  67  Mo.  175;  Wire  v. 

V.  Yollowliead,  80  111.  208;  Hartshorn  Wyman,  93  Ind.  392;  Pepper  v.  Zahn- 

V.    Potroff,    89   111.  509;   Herndon   v.  singer,  94  Ind.  88. 

Moore,  18  S.  C.  339;  Test  v.  Lar.sh,  76  »  Hart  v.  Giles,  6?   Mo.  175;   Alex- 

Ind.  452;  McDaniel  v.  Anderson,  19  auder  v.  Ellison,  79  Ky.  148;  Feltz  v. 

S.  C.  211;   Mather   v.  Knox,  34   La.  Walker,  49   Conn.  93;   Hendricks   v. 

Ann.   410;   Goodman  v.    Winter,    64  Kelly,  64  Ga.  388;  Mayer  v.  Erhardt, 

Ala.  410.  88  111.  452;  Redman  v.  Graham,  80  N. 

^  Fitzpatrick  v.  Apperson,  79  Ky.  C.  231 ;    Wylie's  Appeal,  90  Pa.  St. 

272.  342;   Youngblood  v.  Cunningham,  38 

s  Miller  V.  Ayres,  59  Iowlx,  424.  Ark.  572;  Green's  Appeal,  97  Pa.  St. 

*  Keyser  v.  Simmons,  16  Fla.  268;  342;  Walker  v.  McBane,  8  F.  R.  734; 

Mowry's  Appeal,  94  Pa.  St.  376.  Rabun  v..  Rabun,  61  Ga.  647;  Wiggins 

s  Boubede  v.  Aymes,  29  La.  Ann.  v.  Howard,  83  N.  Y.   613;  Dodge  v. 

274;  Flannigan  v.    Turner,  1  Black.  Pope,  93  Ind.  480;  Williams  v.  Wells, 

491:  Weist  v.  Grant,  71  Pa.  St.  95.  62  Iowa,  740;  Womble  v.  Leach,  83 

6  Green    v.    .Jackson,    60    Ga.  250;  N.  C.  84;  Graves  v.  Rogers,  59  N.  H. 

Wroteu  v.  Armat,  31  Gratt.  228.  452;  Howell  v.  Hale,  5  Lea,  405;  Sav- 

'Broycs  v.  Nowlin,  59  Tcnn.  191;  ings  Inst.   v.  Wilmot,  94  N.   Y.  221; 

Schenck  v.  Sautter,  73  Mo.  46;  Power  S.  C,  46  Am.  R.  137. 


1200 


The  Law  of  Estoppel. 


acquiescing  in,  or  acknowledging  the  title  of  another,'  or  stand- 
ing by  and  seeing  another  making  costly  improvements,'  or 
recognizing  a  claim  or  lien  of  another,  is  estopped  from  subse- 
quently disputing  its  validity.' 

§  1070.  The  statute  of  frauds,  in  providing  that  a  surrender 
of  any  interest  in  lands  must  be  in  writing,  does  not  prevent  one 
who  has  given  back  a  land-contract  held  by  him,  in  order  that  the 
land  might  be  conveyed  to  another  party,  from  recovering  the 
consideration  for  which  he  gave  it  up,  as  by  bringing  suit  he  rati- 
fies the  conveyance  and  precludes  himself  from  claiming  any 
interest  in  the  lands/  Where.  A.  sold  to  B.  a  tract  of  land,  taking 
his  promissory  note  therefor ;  subsequently  the  notes  not  being 
paid,  A.  sold  and  conveyed  the  land  to  a  third  person,  believing 
he  had  a  right  to  do  so.  A.  subsequently  brought  a  suit  on  the 
notes,  which  B.  defended  on  the  ground  of  failure  of  considera- 
tion :  Held^  that,  although  A.  had  no  authority  to  make  the 
second  sale,  yet  he  was  estopped  l^y  it  from  setting  up  the  former 
sale  ;  and  B.,  by  setting  up  the  second  sale  as  a  defense  in  the 
action  on  the  notes,  affirmed  the  title  of  the  second  pureluiser.' 

§  1071.  An  estoppel  injxiis  may  be  created  either  by  the  acts 
of  the  party  himself  or  by  the  acts  of   his  agent,  if  it  appear  that 


«  King  V.  Miibry,  3  Lea,  237;  Cole- 
man V.  Smith,  55  Tex.  354;  Stockhara 
V.  Browning,  18  K  J.  E.  390;  O'Don- 
nell  V.  Kelsey,  4  Sandf.  202;  S.  C,  10 
N.  Y.  413;  Brown  v.  Goddard.'  13  R. 
I.  7G;  Case  v.  Trapp.  49  ]\[icli.  49. 

« Ross  V.  Thompson.  78  lud.  90; 
Muncey  V.  Joest,  74  Ind.  409;  blaster- 
son  V.  R.  R.  Co.,  73  ]\[o.  342;  R.  R. 
Co.  V.  Hamilton,  59  Ga.  171;  Sleeper 
V.  EiiUen,  G  Ka.s.  300;  Kirk  v.  Hamil- 
ton, 102  U.  S.  (i8:  Sciiafer  v.  Glidden, 
3  Col.  15;  Eldridgev.  W'dker,  80  HI. 
270;  Pryzbylowicz  v.  R.  R.  Co  ,  17  F. 
R.  492;  Knaggs  v.  Mastin,  9  Kas.  532; 
Guilbeau  v.  May.s,  15  Tex.  410;  Bank 
V.  Roop.  84  N.  Y  292;  Warder  v. 
Cornell,  105  111.  107;  State  v.  Jersey 
City,  40  N.  J.  483. 


^Broyles  v.  Nowlin,  59  Tenn.  191; 
Moale  V.  Baltimore,  56  Md.  49G  ;  Hart 
V.  Huguet,  33  La.  Ann.  362;  Stewart 
V.  Ins.  Co.,  9  Lea,  104;  Erliardt  v. 
Boar,  3  McCrarj-,  19;  Mowry's  Appeal, 
94  Pa.  St.  376;  Nelson  v.  Claybrooke, 
4  Lea,  G87;  Raley  v.  Williams.  73  ilo. 
310;  Betts  v.  Wurlli,  32  N.  .1.  E.  33; 
Bovvdish  V.  Dubuque,  38  Iowa,  341; 
Territt  v.  Covenhoveu,  79  N.  Y.  400; 
Collier  V.  Pfenning,  34  N.  J.  E.  83; 
Harris  v.  Powers,  57  Ala.  139; 
Laugblin  v.  Mitchell,  14  F.  R.  382; 
Wilson  V.  Hicks,  40  Obio  St.  418; 
Bonis  V.  Smith,  7  Oreg.  267. 

•*  Sullivan  v.  Dunham,  42  Mich. 
518. 

*  O'Neale  v.  Thornton,  6  Cranch, 
53. 


Principal   and  Agent. 


1201 


the  acts  of  such  agent  are  within  tlie  scope  of  his  authoritj.' 
Qui  facit per  aliuin,facit per  se /  and  it  is  upon  this  pi-inciplo  of 
law  tliat  the  act  of  an  agent  hinds  the  principal  and  gives  r"se  to 
the  application  and  operation  of  the  estoppel  in  2Mis.''  Thus  if 
an  agent  who  has  full  and  absolute  control  of  the  disposition  of 
goods  in  which  his  principal  lias  an  interest,  consents  either  ver- 
bally or  in  writing  to  the  sale  thereof  by  a  thh'd  person,  or  silently 
stands  by  and  without  objection  permits  such  pei-son  to  exercise 
a  control  over  such  goods  inconsistent  with  the  rights  of  his  prin- 
cipal, or  to  sell  them,  and  such  third  person  acts  upon  such  tacit 
permission,  and  would  be  injured  by  a  retraction  thereof,  the 
principal  will  be  effectually  concluded  by  such  acts  of  his  agent. 
If  the  clerk  of  a  mei'chant  or  tradesman  offers  goods  for  sale  to  a 
customer,  with  a  representation  very  matei'ial  to  their  value, 
which  representation  his  master  knows  to  be  false,  but  the  clerk 
supposes  to  be  true,  whereupon  the  customer  gives  double  the 
real  value  of  the  goods,  the  contract  ought  to  be  dealt  with  in  the 
same  way  as  if  the  master  himself  had  made  the  representation.^ 


'  Baltimore  v.  Esblebach,  18  Md. 
276;  Fergusaii  v.  Hamilton,  85  Barb. 
437;  Pursley  V.  Morrison,  7  Ind.  355; 
Barrclt,  &c.  Co.  v.  Tappan,  2  Colt, 
124;  Andrews  v.  Kneeland,  6  Cow. 
354;  Aheru  v.  Goodspeed,  72  N.  Y. 
108;  Nelscu  v.  Cowing.  6  Hill,  336; 
Sturgis  V.  Steamboat  Co.,  62  N.  Y; 
625;  Galbraith  v.  Liueberger,  69  N. 
C.  145;  Hildebraudt  v.  Crawford,  0 
Lans.  502;  Smith  v.  Board,  59  111. 
.412. 

2  Cockron  v.  Chitwood,  59  111.  53; 
Dunn  v.  Hartford,  &c.  Co.,  43  Conn. 
434;  Fouch  V.  Wilson,  59  Ind.  93; 
jVIorse  V.  Lyon,  26  Wis.  350;  Kupp  v. 
Stich.  33  Ind.  244;  Slocumb  v.  Cage, 
22  La.  Ann.  1G5;  Watson  v.  Bigalow, 
47  3Io.  413;  Mundorff  v.  Wickersbam, 
63  Pa.  St.  87;  Winecoop  v.  Seal,  64 
Pa.  St.  361;  Evans  v.  Biickner,  1 
Heisk.  291;  Sartwell  v.  Frost,  123 
Mass.  184;  Ogden  v.  Marchaud,  29  La. 
Ann.  61;  Chamberlain  v.  CoUinson,  44 
Iowa,  519;  Nixon  v.  Brown,  57  N. 
H.  34. 

Vol.  L— 76 


3  Cornfoot  v.  Fowke,  6  M.  &  W. 
385;  Schneider  v.  Heath,  3  Campb. 
508;  Everett  v.  Desborough,  3  M.  & 
P.  204;  Heme  v.  Nicbolls,  1  Salk. 
289;  Wilson  v.  Ponlter,  3  Stra.  859; 
Billern  v.  Hyde,  1  Atk.  129;  Hovil  v. 
Pack,  7  East,  164,  Yernon  v.  Hanson. 
7  T.  R.  287;  Ferguson  v.  Carrington, 
9  B.  &  C.  59;  Ham  v.  Boody,  20  N. 
H.  411;  Copeland  v.  Ins.  Co.,  0  Pick. 
198;  President  v.  Barry,  17  Mass.  9r; 
Franks  v.  Jenkins,  23  Ohio  St.  597; 
White  V.  Morgan,  42  Iowa,  113;  Bank 
V.  Kent,  57  Ga.  283;  Nixon  v.  Brown. 
57  N.  H.  34;  Kraft  v.  Fancher,  44  Md. 
394;  Cartwriglit  v.  Green,  47  Barb.  9; 
St.  Louis,  etc.  Co.  V.  Parker,  59  111. 
23;  Hawkings  v.  Lange,  22  Minn.  .057; 
Meyer  v.  Morgan,  51  Miss.  521 ;  Crock- 
ford  V.  Winter,  1  Campb.  127;  Taylor 
V.  Green,  8  C.  &  P.  316:  Wright  v. 
Crookts,  1  Scott  N.  R.  700;  Wheelton 
V.  Hardisty,  8  E.  &  B.  260;  Morse  v. 
Ryan,  26  Wis.  356;  Emmons  v.  Dow, 
2  Wis.  322. 


1202 


The  Law  of  Estoppel. 


If  tlic  rcpresentatioij  forms  part  of  the  contract,  tlic  principal 
must  take  the  contract  in  its  entirety.  Wherever  an  agent  makes 
a  contract  on  belialf  of  his  principal,  whetlier  with  or  without 
authority,  the  princijial  can  not  approbate  and  reprobate  tlie 
contract,  lie  must  adopt  it  altogether,  or  not  at  all ;  ho  can  not 
at  the  same  time  take  the  benefit  which  it  Confers  and  repudiate 
the  obligation  which  it  imposes.'  It  is  a  general  rule,  applicable 
to  all  persons  and  corporations,  and  is  a  dictate  of  plain  honesty, 
that  whoever,  knowing  the  facts  of  the  case,  retains  and  uses 
money  or  the  fruits  of  a  transaction  received  by  an  agent  for  his 
account,  cannot  repudiate  the  contract  on  which  it  is  received, 
and  must  assume  the  obligations  W'hich  form  a  part  of  such  con- 
tract and  all  the  instrumentalities  employed  by  his  agent  to  bring 
it  to  a  consummation.* 

§  1072.  Tiie  act  of  an  agent  outside  the  scope  of  such  agent's 
authority  does  not  bind  his  principal.^  Thus  one  who  executes  a 
promissory  note  in  the  name  of  another,  without  authority  to  do 
so,  becomes  j;ersonally  liable  for  the'  amount  of  the  note.*  Yet 
the  principal  may  ratify  such  act  and  render  it  obligatory  upon 
him.^     Thus  a  man  who  ratifies  an  unauthorized  subscription  in 


'  Bristowe  v.  Wbitmore,  9  H.  L. 
C.  891;  Udell  v.  Atherton,  7  H.  &  N. 
172. 

"  Beidman  v.  Gootiell,  56  Iowa,  592; 
Hans  V.  Nihlack,  bO  Ind.  407;  Strasser 
V.  Coiiklin,  54  Wis.  102;  Warder  v. 
Piittee,  57  Iowa,  515;  Miles  v.  Ogden, 
54  Wis.  57o;  Swope  v.  lus.  Co.,  8  W. 
N.  C.  481;  Waterson  v.  Rogers.  21 
Kas.  529;  PoUoek  v.  Cohen,  32  Ohio 
St.  514;  Perkius  v.  Boothby.  71  Me. 
91;  Tooker  V.  Sloan,  1^0  N.  J.  E.  394; 
Kiddie  v.  Hall.  99  Pa.  St.  11(5;  Bis- 
seli  V.  JelVersi.uville,  24  How.  300; 
Zabriskiev.  II  R.  Co,  23  IIow.  400; 
Armstrong  v.  Garrosv,  G  Cow.  465; 
Pilkinuton  v.  Ureen.  2  B.  &  P.  151; 
Trust  Co.  v.  Walworth,  1  N.  Y.  433; 
JasHn  V.  ililler,  14  Neb.  94;  Mortgage 
Co.  V.  Heudrickson,  13  Neb.  575; 
Elwell  V.  Chamberlain,  31  N.  Y.  019; 


Fuller  V.  Wilson,  3  A.  &  E.  (N.  S.)  56; 
Express  Co.  v.  Drew,  32  Eng.  L.  &  E. 
1;  Craus  v.  Hunter,  28  N.  Y.  389;  Kx^ 
press  Co.  v.  Paln)er,  48  Ga.  85;  .^Ion- 
kens  V.  Watson,  27  Mo.  163:  Krider  v. 
Trustees,  31  Iowa,  547;  Fox  v.  Coker, 
11  Heisk.  579;  Lane  v.  Black,  21  W. 
Va.  026;  Whilden  v.  Bank,  64  Ala. 
1;  Shallner  v.  Edgerton,  13  III.  App. 
132;  Cliamberlain  v.  Robei'tson,  31 
Iowa,  408;  Phillips  v.  Horusb}-,  70  Ala. 
414. 

*  Starkweather  v.  Goodman.  4;' 
Conn.  101;  S.  C,  40  Am.  II.  152. 

*  Dodd  V.  Bishop,  30 La.  Ann.  Pan 
II..  1178. 

^  Burge.ss  v.  Harris,  47  Vt.  322; 
Sentell  v.  Kennedy,  20  La.  Ann.  679: 
State  V.  Spartansburgh  Co.,  8S.  C.  129; 
Sweetzer  v.  French,  3  Cush.  309; 
Bank  v.  Warren,  15  N.  Y.  577. 


Pkincipal  a]sd   Agent.  1203 

his  name  for  stock  by  a  subsequent  promise  is  bound  by  it.*  So 
an  insurance  effected  without  authority,  when  ratified,  renders  tlie 
insured  liable  for  the  premium  or  the  insurers  for  the  loss.'  So 
where  a  person's  name  is  attached  to  a  note  as  surety  without 
authority,  he  is  liable  if  upon  inspection  he  admits  the  signature 
to  be  his.  After  such  admission,  he  is  estopped  from  denying  the 
making  of  it.^  So  a  grantor  whose  signature  has,  at  his  request, 
been  affixed  to  a  deed  by  another  is  bound  thereby  ;  and,  after 
delivery  of  the  deed  and  receipt  of  the  consideration,  is  estopped 
to  deny  the  same.  At  common  law,  signing  is  not  necessary  to 
the  due  execution  of  a  deed,  but  it  is  made  so  by  the  statute  of 
frauds.  But  if  the  grantor's  name  is  written  in  his  presence,  and 
by  his  direction,  it  is  his  act ;  and  he  will  not  be  permitted,  in  a 
court  of  equity,  to  repudiate  a  deed  thus  executed.*  This  is  not 
on  the  ground  of  ratification,  but  on  the  ground  of  adoption. 
There  is  no  question  of  agency  in  such  a  case.  The  acknowledg- 
ment and  delivery  are  the  acts  which  give  the  instrument 
validity.  So,  where  A.  authorized  B.  to  borrow  money  of  C. 
and  sign  his  name  to  a  note  for  it,  B.  borrowed  the  money,  and 
at  his  request,  and  in  his  presence,  D.  signed  A.'s  name  to  the 
note  thus  :  "  A.  by  D."  Held^  that  this  was  the  act  of  B.,  and 
in  legal  effect,  the  act  of  A. ;  and  that  A.  was  bound. ^ 

§  1073.  A  principal  may  be  bound  in  equity  where  he  accepts 
the  consideration  and  ratifies  the  act  of  his  agent  or  attorney. 
He  cannot  ratify  part   of    the   transaction   and  reject  the  rest.'' 

'  Cowell  V.  Tl.  R.,  2S  Pa.  St.  329.  C.  59;  Corniug  v.  Southland,    3  Hill, 

^  Lucena    v.    Crawford,    1    Taunt.  553;  Menkens  v.  Watson,  27  Mo.  163; 

325;  Shlliug  v.  Vaugb,  11  East,  619;  Crans  v.  Hunter,  28  N.  Y.  389;  Wil- 

Fleniiug  V.    Ins.  Co..  4  Wharton,  59;  son  v.    Pulter,   2  Str.  859;    Billou   v. 

Hagedorn   v.  Oliverson,    2   JM.    &  S.  Hyde,  1  Atk.  126;  Smith   v.  Hodson, 

485.  4  T.  R.  211;  Hovil  v.  Pack,    7  East, 

^  Hefner  V.  Vandolah,  62  III.  483.  104;  Findley   v.  Breedlove,    16   Mart. 

'»  Lovejoy  v.  Richnrdson,  68  Me.  105;  Cornwall  v.  Wilson,  1  Yes.  509; 
386;  Ins.  Co.  v.  Brown,  30  N.  J.  E.  Newell  v.  Hurlburt,  2  Yt.  351;  Ben- 
193;  Croy  v.  Buscnbark,  72  lud.  48;  edict  v.  Smith,  10  Paige,  126;  Far- 
Weaver  V.  Carnall,  35  Ark.  198;  S.  C,  mer's,  &c.  Co.  v.  Walworth.  1  X.  Y. 
37  Am.  R.  22;  Clough  v.  Ciough,  73  433;  Small  v.  Atwood,6  CI.  &  F.  232; 
Me.  437;  S.  C,  40  Am.  R.  386.  Seago  v.  Martin,  6  Heisk.    308;    Starr 

"  Weaver   v.    Carnall,  35  Ark.  198;  v.  Stark,   2   Sawder,    605;  Bennet   v. 

S.  C,  37  Am.  R.  23.  Judson,  21  N.  X.  238;  Henderson   v. 

*  Ferguson  v.    Carrington,  9    B.  &  Cumming.s,    44  111.    335;    Widner  v. 


1204  Tjie  Law  of  Estoppel. 

Tims,  wliere  an  agent  was  authorized  to  borrow  money  and  con- 
tract indebtedness  on  behalf  of  liis  principal,  and  tlie  making  of 
a  note  and  creation  of  tlie  debt  is  ratified  by  the  principal,  and 
tlie  agent  is  compelled  to  give  a  mortgage  to  secure  the  payment 
of  such  note,  according  to  its  terms,  and  the  principal,  with  full 
knowledge  of  the  facts,  ratifies  the  creation  of  the  debt  and  the 
giving  of  the  note,  by  such  act,  without  more.  So  far  as  he  has 
the  power,  he  confirms  the  entire  transaction,  including  the 
making  of  the  mortgage.'  The  note  and  mortgage  constitute  one 
transaction.  The  mortgage  alone  is  of  no  effect,  except  as  evi- 
dence of  the  debt ;  and  as  the  principal  would  be  liable  on  the 
note,  and  his  property  not  otherwise  exempt  be  subject  to  sale  in 
order  to  satisfy  such  claim,  tliere  is  no  injustice  done  in  the 
maintenance  of  this  principle.  So,  where  a  loan  having  been 
negotiated  for  a  corporation,  and  to  secure  it  a  mortgage  made, 
but  defectively  executed,  on  its  property  by  an  agent,  an  accept- 
ance by  the  corporation  of  the  benefits  of  the  transaction,  by 
receiving  and  appropriating  to  its  own  uses  the  money  obtained 
on  the  loan,  constitutes  a  ratification  of  the  agent's  act ;  and 
althongh  resting  in  parol,  the  ratification,  in  equity,  operates  as 
an  estoppel  on  the  corporation  from  denying  the  authority  of  the 
agent,  or  the  execution  of  the  mortgage.  The  corporation  having 
become  estopped  by  its  acts  and  conduct  from  denying  tlie  execu- 
tion of  the  mortgage  by  its  agent,  such  estoppel  is  equally  bind- 
ing on  a  subsequent  judgment  creditor  of  the  corporation,  who, 
having  purchased  at  sheriff's  sale  the  land  conveyed  by  the  moit- 
gage,  seeks  to  eject  a  pui'chaser  under  a  power  of  sale  contained 
in  the  mortgage.* 

§  107-i.  Where  the  misconduct  of  the  agent  causes  a  breach 
of  the  obligation  or  contract  of  the  principal,  then  the  principal 
will  be  liable  in  an  action,  whetiier  such  conduct  is  willful  or 
malicious,  or  merely  negligent.'     A  principal  cannot  set  aside  a 

Lane.    14  Mich.  124;  Express   Co.  v.  Breed  v.  Bank.  «  Col.  235. 

Palmer,  48 Ga.  8o3;  Coleman  V.  81  iirk,  '  Kiider   v.  Trustees,  31   Iowa,  547; 

1   Oregon,  115;  Whipple  v.  Whitman,  Taylor  v.  lludgins,  42  Tex.  344;  Bar- 

13  11.1.   512;  Kellogg   v.    Tiirpie,    1)3  tie  v.  Breniger,  ;j7  Iowa,  139. 

111.    2()5;    Fort  v.    Coker,    11     Ileisk.  '^  Taylor   v.  Agricultural,  &c.  Ass., 

5T9;    Davis   v.   Krum,  13   Mo.    App.  G8  Ala.  239. 

279;  Wallace  v.  Lawyer,  90  Ind.  499;  •  R.  R.  Co.  v.  Finney,  10  Wis.  388 


Principal  and  Agent.  1205 

aottlement  hj  his  agent,  after  availing  himself  of  it,'  When  the 
principal  accepts,  receives  and  holds  the  proceeds  of  a  contract, 
he  will  be  estopped  from  denying  an  original  authority  or  ratifi- 
cation. So,  a  person  who  voluntarily  employs  the  agent  of 
another,  knowing  the  fact  of  such  existing  agency,  may  be  bound 
as  fully  by  such  agent's  acts  as  if  he  had  no  other  principal,  and 
is  estopped  from  pleading  the  rule  that  the  same  person  cannot 
be  the  agent  of  two  persons  having  conflicting  interests."  So  a 
person,  having  recognized  the  agency  of  a  person  by  correspond- 
ence and  otherwise,  is  bound  by  his  acts.^  If  a  principal  pro- 
cures and  has  the  benefit  of  advances  from  his  factor,  it  estops 
him  from  objecting  to  them  as  not  complying  with  the  agree- 
ment, whatever  may  be  the  form  in  which  they  are  made.* 

§  1075.  AVhere  the  authority  of  an  agent  depends  upon  some 
fact  outside  the  terms  of  his  power,  and  which,  from  its  nature, 
rests  particularly  within  his  knowledge,  the  principal  is  bound  by 
the  representations  of  the  agent,  although  false  as  to  the  existence 
of  such  facts. ^  In  regard  to  the  liability  of  the  principal  for  the 
acts  of  his  agent,  done  in  the  course  of  his  master's  business,  and 
for  his  benefit,  there  is  no  distinction  between  a  case  of  fraud 
and  any  other  sort.°  No  one  can  adopt  and  receive  the  benefit  of 
a  contract  entered  into  by  his  agent,  and  repudiate  the  fraud  by 
which  it  was  obtained.  When  an  agent,  at  the  time  of  the  con- 
tract, makes  any  declaration  or  representation  relating  to  the 
subject  matter,  it  is  the  representation  or  declaration  of  the  prin- 
cipal.    The  statements  of  the  agent  which   are  involved   in   the 

'  Dougherty  v.  Hunger,  54  Pa.    St.  325;  3Iining   Co.  v.  Bauk,    2  Col.  T. 

380;  Burgess   v.    Harris.   47  Vt.  322.  248. 

Rogers  V.  Hadle.y,  2  H.  &  C.  227.  •*  Bradley  v.  Richardson,  23  Vt.  720; 

-P'^itzsimmons   v.    Express  Co.,    40  S.  C,  2  Blatchford  C.  C.  343. 

Ga.  333;  Smith  v.  Ins.   Co.,  25  Barb.  ^  r    r    Co.  v.   Schuyler,  34  N.  Y. 

497;  Ins.   Co.    v.    Arthur,  30   Pa.  St.  30;  Griswold  v.  Haven,  25  N.  Y.  595; 

815;  Wilson  v.    Ins.  Co.,  4  R.  I.  141;  Towie  v.  Leavitt,  23  N.  H.  873;  Bank 

Lowell  V.  Ins.  Co.,  8  Cush.  127.  v.    Aymar,    3    Hill,    262;    Butler  v. 

«  Caswell   V.  Cross,  120   Mass.  545;  Maples,   9  Wall.    766;  R.    R.    Co.  v. 

Cransv.  Hunter,  28  N.  Y.  389;  Muu-  Gas  Co.,  43  Iowa,  301;  Torne   v.    R. 

dorf  V.   Wickersham,  63  Pa.  St.  87;  R.,  39  Md.  36. 

Hazeler  v.   Lemoyne,  5  C.  B.  (N.  S.)  ^  Barwick  v.  Bank,  L.  R.  2  Exchcj. 

530;  Summerville  v.   R.  R.,   02  Mo.  265;  Hern  v.    Nichols,    1   Salk.    289; 

391;    Seago    v.     Martin,    6     Heisk.  Lister  v.  Allen,  31  Md.  543. 
308;  Burritt    v.    Ranch,   4    McLean, 


1206 


The  Law  of  E^toppp:l. 


contract  as  its  foundation  or  inducement  are  in  law  the  statements 
of  the  principal.  The  principal  cannot  separate  the  contract 
itself  from  that  hy  which  it  was  induced,  lie  must  adopt  the 
whole  contract,  including  the  statements  and  representations 
which  induced  it,  or  must  repudiate  the  contract  altogether.' 
It  would  be  inconsistent  with  natural  justice  to  permit  a  man  to 
retain  property  acquired  through  the  Tuedium  of  false  representa- 
tions made  by  his  agents,  although  he  was  no  party  to  them,  or 
did  not  authorize  them."  Any  instrument  witliin  the  scope  of 
an  agent's  authority,  by  which  he  intends  to  bind  his  principal 
does  bind  him,  if  the  intent  is  inferable  from  the  instrument 
itself.' 

§  1076.  The  false  and  fraudulent  representations  of  an  agent, 
acting  within  the  scope  of  his  authority,  bind  the  principal,  but 
he  must  be  so  acting.  Thus  if  the  agent,  acting  within  the  scope 
of  his  authority,  represented  that  he  knew  facts  to  be  true,  which 
were  not  true,  but  which  he  did  not  know  to  be  false,  it  is  imma- 
terial whether  or  not  the  plaintiffs  knew  that  he  was  to  make  the 
representations,  or  expressly  authorized  them,  such  representa- 
tions are  fraudulent  in  the  agent,  and  the  principal  ib  bound  by 
thera.^ 


'  Udel  V.  Atberton,  7  H.  &  N.  184; 
■Ginger,  in  re,  5  Ir.  Cli.  174;  Barwick 
V.  Bank.  L.  K.  2  Excbq.  365;  Bristow 
V.  Wliilmore  9  H.  L.  418;  AVbeelton 
V.  Ilaidisty,  8  E.  &  B.  270;  Hough  v. 
Ricliardson,  3  Story,  C89. 

"  R.  R.  Co.  V.  Corrybeare,  9  H.  L. 
711;  Bank  v.  Addie,  L.  R.  1  Sc. 
App.  Cas.  159;  Oakes  v.  Turquand, 
L.  R.  2  App.  Cas.  325;  Fitzsinimons 
V.  Joslin,  21  Vt.  129;  Veazie  v.  Wil- 
liams, 8  How.  134;  Crockery.  Lewis, 
3  Suinn.  8;  Bowers  v.  Johnson,  18 
Miss.  109;  Huntv.  Moore,  2  Pa.  St. 
105;  Huuler  v.  Hudson,  20  Barb. 
493;  Franklin  v.  EkcH,  1  Siieed, 
497. 

3  Post  V.  Pearson,  108  U.  S.  418; 
Prickett  v.  County,  14  111.  App.  454. 

*  Jewett  V.  Carter,  132  Mass.  335; 
Hurd    V.    Maple.    10   111.    App.    418; 


Locke  V.  Stearns,  1  Mete.  560;  Kdibe 
V.  Ins.  Co.,  11  Gray,  163;  Wilson  v. 
Fuller.  3  Q.  B.  77;  Blair  v.  Bromley. 
2  Ph.  350;  Coleman  v.  Riches,  16  C. 
B.  104;  Wbeelton  V,  ITardisty,  8  E.  & 
B.  232;  Udell  v.  Atberton,  7  H.  &,  N. 
173;  Bernard's  Case,  5  D.  G.  &  S. 
283;  Ayres'  Case,  25  Beav.  513;  Bur- 
nesv.  Pennell,  2  II.  L.  C.  497;  Nic- 
oll'sCase,  2  D.  &  J.  387;  Woolaston's 
Case,  4  D.  &  J.  437;  Atty.  Genl.  v. 
Briggs,  1  .Jur.  (N.  S.)  10S4;  R.  R.  Co. 
V.  Corrybeare.  4  H.  L.  711;  Eweli 
\.  Chamberlain.  31  N.  Y.  611;  Mit- 
chell v.  Minuis,  8  Tex.  6;  Mundorf 
V.  Wickersbam.  63  Pa.  St.  87;  Ben- 
nett V.  Jndson,  21  N.  Y.  238;  Lobdell 
V.  Baker,  1  Met.  193;  Lawrence  v. 
Hand,  23  Miss.  103;  Bank  v.  Gregg, 
14  N.  II.  331;  Bowers  v.  Johnson,  18 
Mi.ss.  169:  Mason  v.  Crosby,  1   W.  & 


Principal  and  Ageistt.  1207 

§  1077.  Whatever  the  previous  authority  of  the  agent,  what- 
ever the  principal's  own  innocence,  he  must  adopt  the  whole 
contract,  including  the  statements  and  representations  which 
induced  it,  or  repudiate  the  contract  altogether.  There  are,  no 
doubt,  many  frauds  committed  by  agents  wliich  do  not  bind  their 
principals  ;  but  the  statements  of  the  agent  which  are  involved  in 
the  contract  as  its  foundation  or  inducement  are  in  law  the  state- 
ments of  the  principal/  Where  a  merchant,  being  applied  to  by 
A.,  assuming  to  act  in  behalf  of  B.,  for  goods  on  the  credit,  and 
for  the  use  of  B.,  refused  to  deliver  them  without  a  written 
authority  from  B.,  A.  afterwards  produced  a  writing  purporting 
to  be  such  autiiority,  and  received  the  goods  on  the  credit  of  it. 
The  order,  however,  was  forged,  and  the  goods  never  came  to 
B.'s  use.  It  appearing  that  A.  was  the  general  agent  of  B.,  and 
had  frequently  paid  for  goods  taken  up  by  A.  on  the  credit  and 
to  the  use  of  B.,  and  plaintiff  was  held  entitled  to  recover.  The 
principle  appears  to  be  that  where  one  of  two  innocent  persons 
must  suffer,  it  must  be  the  one  who  has  by  his  own  acts  and  con- 
duct made  it  possible  for  the  fraud  to  have  been  perpetrated.'' 
If  the  acts  of  agency  have  been  exercised  in  so  open  and  public 
a  manner  that  it  may  reasonably  be  inferred  that  the  principal 
must  have  been  cognizant  of  them,  the  principal  will  be  liable, 
although  no  express  authoritj'  can  be  proved.  If  the  agent  has 
published  advertisements,  and  therebj'  induced  parties  to  contract 
with  him,  the  principal  will  be  bound  by  the  publicity  of  the 
announcement,  although  no  actual  authority  has  been  given,    "It 


M.  342;  Morton  v.  ScuU,  23  Ark.  289;  Dows  v.  Green,  16  Barb.  72;  Bank  v. 

Griswold   v.    Haven.    25  N.    Y.    595;  Bank,  1  Kelly,  418;  Stain  v.  Read,  11 

Graves  v.  Spear,  58  Barb.  349;  Ray  v.  Gratt.  281;  Hunter  v.  Jameson,  6  Ired. 

Bank,  10   Bush,  344;  Sherley   v.  Bil-  252;   Nelson   v.  Cowing,  6   Hill,  336; 

lings,  8  Bush,  147;  Burns  v.  Poulsom,  Woodford  v.  McClenahau,  9   111.  85; 

L.  R.  8  0.  P.  563;  Burwick  v.  Bank,  Skinner  v.  Gunn,  9  Porter,  305;  Brad- 

L.  R.  2  Exchq.  259;  Huntley  v.  Ma-  ford   v.  Bush,  10   Ala.  386;   Cocke   v. 

Ihias,  90  N.  C.  101;  S.  C.  47  Am.  R.  Campbell,  13  Ala.  286;  Ezel  v.  Frank- 

516;  White  v.  Leighton,  15  Neb.  424;  lin,  2  Sneed,  216;  Kerslake  v.  Schoon- 

Wirt  V.  IVIcEnery,  21   F.  R.  233;  Ins.  maker,  1  Hun,  436;  Barber  v.  Gingell, 

Co.  V.  White,  106  111.  67.  3   Esp.    GO;   Partridge   v.   Badger,  25 

'  Udell  V.  Atherton,  7  H.  &  N.  172.  Barb.  146;  St.  Louis,  &c.  Co.  v.  Parker, 

"  Chidsey  v.  Porter,  21  Pa.  St.  390;  59  111.  23. 


1208  The  Law  of  Estoppel. 

is  a  question  between  the  principal  and  his  agent,  and  the  public 
has  nothing  to  do  Avith  it.'" 

§  1078.  Wherever  the  principal,  by  his  conduct,  has  held  out 
the  agent  to  the  parties  dealing  with  him  as  having  a  general 
power  to  act  in  the  premises,  his  acts  bind  the  principal  ;  and  the 
liabilit}'  of  the  latter  upon  the  contract  can  not  be  qualified  by 
the  existence  of  any  private  instructions,  which  the  agent  may 
have  exceeded.'  Thus,  where  J.,  carrying  on  business  at  one 
place,  and  having  a  branch  establishment  at  another,  placed  the 
latter  under  the  management  and  superintendence  of  B.,  as  his 
ajrent,  and  the  branch  business  was  carried  on  in  the  name  of 
B.  &  Co.,  but  B.  had  no  authority  to  accept  bills,  and  B.  never- 
tlieless  exceeded  his  authority  by  tlie  acceptance  of  a  bill  of 
exchange,  it  was  held^  that  J.  was  liable  thereon,  it  not  being  in 
his  power  to  divest  his  agent,  by  any  secret  reservation,  of  the 
powers  incidental  to  the  character  of  principal  which  he  had 
empowered  him  to  assume.'  Thus,  a  party  having  an  inchoate 
title  to  land,  gave  a  power  to  sell  and  convey  it,  declaring,  how- 
ever, in  the  power,  that  the  attorney  was  authorized  to  convey 
"such  interest  as  J  have"  and  no  other,  and  that  he  would  not 
hold  himself  liable  for  acts  of  his  attorney,  '•  beyond  quit-claiming 
whatever  title  I  have."  The  party  afterwards  acquired  complete 
title,  and  the  attorney  conveyed  by  quitclaim  for  full  considera- 
tion, which  consideration  passed  to  the  principal.  The  grantor 
could  not,  six  years  afterwards,  disavow  the  act  of  his  attorney 
and  convey  the  land  to  another  person.*  So,  where  an  executrix, 
having  a  life  estate  in  the  lands  devised,  having  executed  a  valid 
power  of  attorney,  authorizing  an  agent  to  sell  and  convey  the 
lands  ;  and  the  agent  having  sold  and  conveyed  the  lands  in  her 
name,  adding  the  word  executrix  and   his  own  name  as  agent ; 

'  Ilunquist  v.  Ditchcll,  5  Ei<p.  64.  281;  Hunter  v.  Jameson,  6  Ired.  252; 

=  Snietlmrst  v.  Taylor.  12  M.  &  W.  Nelson  v.  Cowing,  6  Hill,  ;i36;  Wood- 

j)54;   Smith   v.  JMcGuire.  :j   11.   &   N.  lord  v.  McClenahan,  1)  111.  8o:  Skinner 

554;  Edmunds  v.  Bushell,  35  L.  J.  Q.  v.  Gunn,  9  Porter,  305;   Bradford   v. 

B.  20.  Bush,  10  Ala.  386;   Ezel   v.  Franklin, 

»  Edmunds  v.  Bushell,  L.  R.  1   Q.  2  Sneed.  21G;  Ferris  v.  Kilmer,  48  N. 

B.  97;  35  L.  J.  Q.  B.  20;  Chid.sey  v.  Y.  300;  Cocke  v.    Campbell,  13  Ala. 

rorter,    21    Pa.    St.    390;    Dows    v.  286. 

Green,  16  Barb.  72;   Bank  v.  Bank,  1  «  Smith  v.  Sheeley,  12  Wall.  358. 

Kelly,  418;   Stain   v.  Reed,  11   Gratt. 


Principal  and   Agent.  1209 

tliongli  neither  the  power  of  attorney  nor  the  deed  binds  the 
testator's  estate,  they  yet  bind  the  executrix  personally,  convey 
her  life  estate  in  the  lands,  and  estop  her  from  maintaining  an 
action  as  executrix  for  their  recovery/ 

§  1079.  The  doctrine  of  implied  agency  arising  out  of  neg- 
ligence has  its  true  basis  in  the  principle  of  estoppel  in  pais.  That 
principle  is  founded  upon  the  injustice  of  allowing  a  party  to  be 
the  author  of  his  own  misfortune,  and  then  to  charge  the  conse- 
quences upon  others,  and  it  implies  an  act  in  itself  invalid ;  a  per- 
son is  forbidden  for  equitable  reasons  to  set  up  its  invalidity.  The 
mode  in  which  the  liability  is  enforced  in  all  these  cases,  is  by 
estoppel  in  pais.  The  agent  or  partner  has  in  each  case  made  a 
representation  as  to  a  fact  essential  to  his  power,  upon  the  faith 
of  which  the  other  party  has  acted,  and  the  principal  or  firm  is 
precluded  from  controverting  the  fact  so  represented.  The  power 
conferred  in  these  cases  is  of  snch  a  nature  that  the  agent  can  not 
do  an  act  appearing  to  be  within  its  scope  and  authority,  without, 
as  a  part  of  the  act  itself,  representing  expressly  or  by  necessary 
implication,  that  the  condition  exists  upon  which  he  has  the  right 
to  act.  Of  necessity  the  principal  knows  this  fact  when  he  confers 
the  power.  He  knows  that  the  person  he  authorizes  to  act  for 
liim,  on  condition  of  an  extrinsic  fact,  which  in  its  nature  must 
be  peculiarly  witliin  the  knowledge  of  that  person,  cannot  execute 
the  power  without,  as  res  gestcB.,  making  the  representation  that  the 
fact  exists.  With  this  knowledge  he  trusts  him  to  do  the  act,  and 
consequently  to  make  the  representation,  which,  if  true,  is  of 
course  binding  on  the  principal.  But  the  doctrine  claimed  is  that 
he  reserves  the  right  to  repudiate  the  act,  if  the  representation  be 
false.  So  he  does,  as  between  himself  and  the  agent,  but  not  as  to  an 
innocent  third  party  who  is  deceived  by  it.  The  latter  may  answer, 
"  You  intrusted  your  agent  with  means  effectually  to  deceive 
me  by  doing  a;i  act  which  in  all  respects  compared  with  the 
authority  you  gave,  and  which  act  represented  that  an  extrinsic 
fact  known  to  your  agent  or  yourself,  but  unknown  to  me,  existed, 
and  you  have  thus  enabled  your  agent,  by  falsehood,  to  deceive 
me,  and  must  bear  the  consequences.  The  very  power  you  gave, 
since  it  could  not  be  executed  without  a  representation,  has  led 

'  Phillips  V.  Hornsby,  70  Ala.  414. 


1210  The  Law  of  Estoppel. 

mc  into  this  position,  and  therefore,  you  are  estopjjed  in  justice 
to  deny  liis  autliority  in  this  case."  By  this  ici  not  meant  that  the 
principal  authorizes  the  false  representation.  He  only  in  fact 
authorizes  the  act  which  involves  a  representation,  which,  from 
his  confidence  in  the  agent,  he  assumes  will  be  true  ;  but  it  may 
be  false,  and  the  risk  that  it  may,  he  takes,  because  he  gives  the 
confidence  and  credit  which  enables  its  falsity  to  prove  injurious 
to  an  innocent  party.  Tliis  princi])le  in  many  cases  sustains 
liabilit}'  after  all  actual  authority  has  been  withdrawn,  as  between 
the  principal  and  parties  who  have  a  right  to  infer  that  the 
authority  continues.  Where  the  principal  has  clothed  his  agent 
with  power  to  do  an  act  upon  the  existence  of  some  extrinsic  fact 
necessarily  and  peculiarly  within  the  knowledge  of  the  agent,  and 
of  the  existence  of  which  the  act  of  executing  the  power  is  itself 
a  representation,  a  third  person  dealing  with  such  agent  in  entire 
good  faith  pursuant  to  the  apparent  power,  may  rely  upon  the 
representation,  and  the  principal  is  estopped  from  denying  its 
truth  to  his  prejudice.' 

§  1080.  Where  the  authority  of  an  agent  has  been  wholly 
withdrawn,  the  neglect  of  the  duty  to  notify  parties  who  have 
dealt  with  him  estops  the  principal  from  denying  the  continuance 
of  the  agency,  although  no  power  in  fact  exists.  And  so  a  retir- 
ing partner  is  bound  1)}'  the  acts  of  his  former  fivni  if  he  omits 
the  duty  of  notice.  In  these  cases,  for  omitting  an  act  which 
would  have  prevented  the  injury,  the  truth,  to  wit,  the  actual 
want  of  authority,  is  shut  out  by  the  negligence  ;  but  the  neg- 
lect does  not  cause  the  assumed  agent  to  do  the  act  which 
occasions  the  injni-y  ;  it  only  suffers  an  o])]iortunity  to  do  it 
to  exist,  which  in  law  is  equivalent.  If  ordinary  cai-e  was  due 
from  the  corporation  toward  its  dealers  so  to  nianage  its  affairs 
that  its  agents  should  have  no  opportunity  to  commit  fraud  which 
such  care  would  prevent,  then  the  same  principle  is  ap|)licable 
here  to  estal)lish  the '^j^'oxima  ca/usa  which  the  law  demands. 
It  is  iu)t  in  sucli  cases  one  of  two  imiocent  parties  who  istosuffer. 
The  question  is  between  an  imiocent  and  a  culpable  party.  Where 
a  party  has,  by  his  declaration  or  conduct,  induced  anothei'  to  act 

'  Ashby  V.  Blackwell,  2  Eden,  299;      Trust,  &c.  Co.  v.  Bank,  6  Fed.  Rep. 
Bissell   V;  R.  R.  Co.,  22   N.   Y.  258;      114;  Lister  v.  Allen,  31  Md.  543. 


Pkincipal  and   ActEnt.  1211 

in  a  particular  manner,  lie  will  not  afterwards  be  permitted  to 
deny  the  truth  of  his  admission  if  the  consequence  would  be  to 
work  an  injury  to  such  otlier  person.  The  question  of  estoppel 
is  one  of  ethics,  and  is  to  be  enforced  where,  in  good  conscience 
and  honest  dealing,  it  ought  to  be.  The  principle  that  pervades 
the  distinction  on  this  subject  rests  on  sound  and  elevated  raoral- 
it3\  There  must  be  no  deception  anywhere.  The  principal  is 
bound  by  the  acts  of  his  agent  if  he  clothe  him  with  powers  cal- 
culated to  induce  innocent  tliird  persons  to  believe  the  agent  had 
due  authority  to  act  in  the  given  case.  He  who  created  the  trust, 
and  not  the  purchaser,  ought  to  suffer.' 

It  is  a  well  recognized  branch  of  the  law  of  principal  and 
agent,  that  without  any  express  or  special  appointment,  an 
implied  agency  may  arise  from  the  conduct  of  a  party.  Where  a 
person  has  recognized  a  course  of  dealing  for  him  by  another  or  a 
series  of  acts  of  a  particular  kind,  an  implied  agency  is  thereby 
constituted  to  carry  on  the  same  dealing  or  to  do  acts  of  the  same 
character.  There  may  be  seeming  contradictions  of  the  funda- 
mental doctrine  that  a  principal  is  bound  only  by  such  acts  of  liis 
agent  as  he  has  duly  authorized.  This  presumption  or  implied 
agency  is  one  of  these,  because  a  man  may  have  accepted  sup- 
posed acts  which  he  never  authorized,  and  so  be  bound  as  to  third 
persons  by  similar  acts." 

§  1081.  Although  no  previous  authority  may  have  been  given 
by  the  principal  to  the  agent,  to  enter  into  and  sign  tlie  contract 
upon  which  the  principal  is  sought  to  be  charged,  yet,  if  there  be 
subsequent  acts  of  assent  or  acquiescence  on  the  part  of  the  prin- 
cipal, he  is  as  much  liable  upon  the  contract  as  if  a  previous 
authority  had  been  duly  given.  ^'■Omiiisratihabitioretrotrahitur 
et  mandato  priori  aequiparaturr'^  A  subsequent  ratification  has 
a  retrospective  effect,  and  is  equivalent  to  a  prior  coajmand." 

'Bank    v.    Bank.    13    N.   Y.  316;  "Bank    v.    Bank,    16    N.   Y.    145; 

Dezell  V.  Odell,  3  Hill,  225;  Welland  Bradish  v.  Belknap,  41  Vt.  172. 

Canal   v.    Hathaway,    8    Wend.    483;  ^  Soames  v.  Spencer,  1  D.  &  R.  32; 

Scbemmelpenich    v.    Bayard,   1    Pet.  Maclean   v.    Dunn,  1    M.    &   P.   761; 

290;  Perkins  v.  Ins.  Co.,  4  Cow.  645;  Fitzmaurice  v.  Bayley,  26  L.  J.  Q.  B. 

Sharp  V.  Milligan,  22  Beav.  606;  Brad-  115. 

ishv.  Belknap,  41  Vt.  172;  Lister  v.  *  Kelsey  v.  Bank,  69   Pa.  St.  426; 

Anell,  31  Md.  543.  Chapman  v.  Lee,  47  Ala.  143;  Meehan 


1212 


TiiK  Law  of  Estoppel. 


§  10S2.  The  maxim  applies  only  to  the  acts  of  one  who  pro- 
fesses to  act  as  the  agent  of  the  person  who  subsequently  ratifies 


V.  Forrester,  53  N.  Y.  277;  Hazard  v. 
Spears,  Abb.  App.  Dec.  S.IS;  Frank 
V.  Jeiikius,  22  0)no  St.  597;  Stains- 
bury  V.  Frazer's,  etc.  Co.,  3  Daly,  98; 
Ketchum  v.  Verdull,  42  Ga.  5U  ;  Mur- 
ray V.  Walker,  44  Ga.  58;  Le.stcr  v. 
Kinne,  '67  Conn.  9;  Bassett  v.  Brown, 
105  ]Mass.  551 ;  Rowan  v.  Hyatt,  45  N. 
Y.  138;  Hawkins  v.  Baker,  4G  N.  Y. 
666;  Pollock  v.  Cohen,  32  Ohio  St. 
514;  Reynolds  v.  Davison,  34  Md.  6G2; 
Paine  v.  Wilco.x,  16  Wis.  203; 
Weiseger  v.  Wheeler,  14  Wis.  101; 
Partridge  v.  White,  50  Me.  564;  Krider 
V.  Trustees,  31  Iowa,  547;  Grant  v. 
Beard,  50  N.  H.  139;  Bank  v.  Warren, 

15  N.  Y.  577;  Fargo  v.  Ladd,  6  Wis. 
117;  Baldwin  v.  Burrows,  47  N.  Y. 
199;  Hammond  v.  Plannin,  21  Mich. 
374;  Brisbane  v.  Adams,  3  N.  Y.  131; 
Hoyt  V.  Thompson,  19  N.  Y.  207; 
Wright  V.  Burbank,  64  Pa,  St.  247; 
Gulick  V.  Grover,  33  K  J.  L.  463; 
Drakeley  v.  Gregg,  8  Wall.  242;  Vin- 
cent v.  Rather,  31  Tex.  77;  Stoddart's 
Case,  4  Ct.  of  CI.  511;  Fowler  v. 
Pearce,  49  III.  59;  Trust  Co.  v.  Wal- 
worth,  1   N.  Y.  433;  Bank  v.   Bank, 

16  Wis.  120;  Ridenour  v.  Wherrett, 
30  lud.  485;  Williams  v.  Storm,  6 
Coldw.  203:  Hardeman  v.  Ford,  12 
Ga.  205;  Billings  v.  Morrow,  7  Cal. 
17!;  R.  R.  Co.  v.  Gazzam,  33  Pa.  St. 
310;  Express  Co.  v.  Trego,  35  Md.  47; 
Combs  V.  Scott,  12  Mass.  493:  Oiliorne 
V.  j\Iaxey,  13  Mass.  178;  Conn.  v. 
Penn.,  1  Pet.  496;  Pratt  v.  Putn.un,  13 
Mass.  361 ;  Beal  v.  Ins. Co.,  16  AVis.  241 ; 
Fisher  v.  Willard,  13  :Mass.  379; 
Benedict  v.  Smith,  10  Paige,  130; 
Fredendall  v.  'I'aylor,  26  Wis.  286; 
Boynton  v.  Turner,  13  Mass.  391; 
Copeland  v.  Ins.  Co.,  6  Pick.  198; 
Walrup,  in  re,  1  McCrary,  70;  Dan 
V.    Wright,    1   Pet.  72;   Buchanan  v. 


Upshaw,  1  How.  56;  j\IcCracken  v. 
San  Francisco,  16  Cal.  591;  Forbing- 
ham  V.  Haley.  3  Mass.  68;  Lent  v. 
Padelford,  10  Mass.  230;  Bronson  v. 
Chappell,  13  Wall.  681;  Mendorf  v. 
W'icker.sham,  63  Pa.  St.  87;  Slocumb 
V.  Cage,  22  La.  Ann.  165;  Maddox  v. 
Bevan,  39  Md.  485;  Weed  v.  Car- 
penter, 4  AVend.  219;  Society  v. 
Church,  1  Pick.  372;  Corning  v. 
Southland,  3  Hill,  552;  Moss  v.  Ross, 

5  Gill,  127;  Clark  v.  Van  Riensdyk,  9 
Cranch,  153;  Willinks  v.  Holiings- 
wood,  6  Wheat.  241;  Lawrence  v. 
Taylor,  511111,  107;  Bank  v.  Fricke,  75 
Mo.  178;  Newton  v.  Bronson,  13  N.  Y. 
587;  Sanderson  v.  Griffiths,  5  B.  &  C. 
909;  Vere  v.  Ash  by,  10  B.  &  C.  288; 
Holland  v.  Drake,  29  Ohio  St.  441; 
Keeler  v.  Salisbury,  33  N.  Y.  648; 
Duncan  v.  Lowndes,  3  Camp.  478; 
W' ils(na  v.  Tumman,  6  M.  &  G.  236; 
Cooper  V.  Schwartz,  40  Wis.  54; 
Lampson  v.  Arnold,  19  Iowa,  479; 
Binl  V.  Brown,  4  Exchq.  786;  Simp- 
son V.  Eggiuton,  10  Exchq.  845;  Foster 
V.  Biites,  12  M.  &  W.  226;  Burton  v. 
Dennian,  2  Exchq.  188;  Coal  Co.  v. 
McCulloch,  59  Md.  403;  Conrad  v. 
Abbott,  132  Mass.  330;  Hewa'S  v. 
Parkman,  20  Pick.  90;  Clement  v. 
Jones,  12  Mass.  60;  Shaw  v.  Nudd.  8 
Pick.  9;  Hefner  v.  Vandolah,  03  111. 
483;  Trapp  V.  Putnam,  13  Mas.s.  361; 
Emcison  v.  Newburj%  13  Pick.  377; 
Fisher  v.  Willard,  13  Mass.  379;  Dela- 
tield  V.  Illinois,  26  Wend.  236;  JLc- 
Lean  v.  Drew,  4  Bing.  722;  Davis  v. 
School  Dis't,  44  N.  H.  407;  Halton  v. 
Stewart,  2  Lea,  335;  Bird  v.  Brown,  4 
Exchq.  786;  Soames  v.  Spencer,  I  D. 

6  R.  33;  District  Att'y,  ia  re,  11  Phila. 
645;  Sage  v.  McLaughlin,  34  Wis. 
560;  Henry  v.  Winnebago,  52  111.  454; 
Bank  v.  Merriit,  7  Heisk.  177;  Reigard 


PuixciPAL  AND  Agent.  1213 

the  act  of  such  person.'  In  addition  to  the  cases  cited,  there  ar^ 
numerous  decisions  and  dicta  to  be  found  tliat  a  subsequent 
ratification  is  equally  effectual  as  an  original  authority,  *'  that  such 
adoptive  authority  relates  back  to  the  time  of  the  transaction,  and 
is  deemed  in  law  the  same  to  all  purposes  as  if  it  had  been  given 
before."  Such  expressions  are  of  frequent  occurrence,  and  although 
they  display  too  much  carelessness  in  the  use  of  language,  yet,  if 
they  are  understood  as  applicable  only  to  the  cases  in  which  they 
occur,  they  may  be  considered  as  a  correct  statement  of  law.  The 
inac(!uracy  consists  in  not  properly  distinguishing  between  those 
cases  whei'e  the  subsequent  act  of  ratification  is  put  forth  as  the 
foundation  of  a  right  in  favor  of  the  party  who  has  ratified,  and 
those  where  it  is  made  the  basis  of  a  demand  against  him. 
There  is  a  broad  and  manifest  difierence  between  a  case  in 
which  a  party  seeks  to  avail  himself,  by  a  subsequent  assent,  of 
the  unauthorized  act  of  his  agent,  in  order  to  enforce  a  claim 
against  a  third  person,  and  the  case  of  a  party  acquiring  an 
inchoate  right  against  a  piincipal,  by  an  authorized  act  of  his 
agent,  to  which  validity  is  afterwards  given  b}'  the  assent  or 
recognition  of  the  principal.  The  principal  in  such  case  may,  by 
Ills  subsequent  assent,  bind  himself,  but  if  the  contract  be  execu- 
tory, he  cannot  bind  the  other  party.  The  latter  may,  if  he 
choose,  avail  himself  of  such  assent  against  the  principal,  which, 
if  he  does,  th  ■  contract,  by  virtue  of  such  mutual  ratification, 
becomes  mutually  obligatory.  There  are  many  cases  where  the 
acts  of  parties,  although  unavailable  for  their  own  benefit,  may 
be  used  against  them,  as  where  the  subsequent  assent  is  employed 
against  the  person  who  has  given  it  and  taken  the  benefit  of  the 
obligation.  If  a  bill  or  note  be  signed  without  authority  by  A's 
servant  or  agent,  in  the  name  of  A.,  a  subsequent  promise  by  the 
latter  to  pay  the  bill  is  equivalent  to  a  prior  authority.^  And  if 
the  proceeds  of  such  a  bill  are  applied  to  A.'s  use  or  for  his  benefit, 
with  his  knowledge  or  concurrence,  such  application  of  the 
money  obtained  upon   tlie  bill,  will  of  itself   amount  to  a  subse- 

V.    McNeal.    38    111.    400;    Wilson   v.  '  Vere  v.   Ashby,  10  B.  &  C.  288 

Fuller,  3  Q.  B.  77;   Bluir  v.  Bromley,  Wilson   v.    Cumm'on,  6  M.  &  G.  236; 

2  Ph.  350;  Udell  v.  Atheiton,  7  H.  &  Ancona  v.  Marks,  6  H.  &  N.  686. 

N.   173;  Farrar  v.   Duncan,   29    La.  *  pgnn  v.  Harrison,  4  T.  R.  177. 
Ann.  126. 


1214  TiiK  Law  of  Estoppel, 

qncnt  St'inction  aiul  ratification  of  tlio  act  of  the  agent.'  An 
adoption  of  the  agency  as  to  one  part  of  a  contract,  generally 
operates  as  an  adoption  of  the  whole  ti-ansaction  ;  tor  an  act  can 
not  be  affirmed  as  to  so  much  as  is  beneficial,  and  rejected  as  to 
the  residue."  The  principal  is  bound  by  the  act,  whether  it  be 
for  his  detriment  or  his  advantage,  and  whether  it  be  founded  on 
a  tort  or  a  contract,  to  the  same  extent  and  witli  all  the  conse- 
quences which  folhjw  from  the  same  act  if  done  by  his  previous 
authority.'  The  subsequent  ratification  of  the  contract  by  the 
principal  relates  back  to  the  time  when  it  was  made  by  the 
agent ;  and  in  those  cases  where,  by  the  statute  of  frauds,  the 
contract  is  required  to  be  authenticated  b}'  writing,  such  ratifica- 
tion renders  the  agent  an  agent  duly  authorized  to  bind  liis  princi- 
pal, under  the  provisions  of  the  statute,  at  the  time  the  contract 
was  entered  into. 

§  1083.  xVn  authority  is  often  implied  from  circumstances ;  as 
if  the  agent  had  formerly  been  in  the  habit  of  drawing,  accepting 
or  indorsing  for  his  principal,  and  his  principal  has  recognized 
Ids  acts.  Thus,  to  an  action  against  an  acceptor  of  a  bill,  the 
defense  was,  that  the  drawer  had  forged  the  acceptor's  signature, 
in  answer  to  which  it  was  proved  that  the  defendant  had  previ- 
ously paid  sncli  acceptances  ;  and  this  was  held  proof  of  authoriry 
to  the  drawer.^  Any  person  who  accredits  another  by  employing 
him  in  any  particular  course  of  dealing,  is  bound  by  what  has 
been  done  by  such  agent  in  the  course  of  his  usual  employment, 
and  is  responsible  to  tliird  parties  wlio  have  dealt  with  the  agent 
in  reliance  upon  the  power  and  authority  with  which  he  was 
apparently  clothed  by  the  principal."  If  B.  has  repeatedly  signed 
A.'s  name  to  policies  of  insurance,  or  to  bills  or  notes,  and  A.  has 

'  Boltou  V.  Ilillersdcn,  1  Ld.  Raym.  Iridgc  v.  Badger,  25  Barb.  14G;    Phil. 

224.  &c.  R.  R.  Co.  V.  Weaver,  34  Md.  431; 

-'  Hovil  V.  Pack,  7  East,  166.  Caldwell  v.  Neill,  21  La.  Ann.  34. 

•*  Wilson  V.  Tummon,  6  Scott  N.  R.  ^  Whitehead  v.   Tuckeft,   13    East, 

904;  Berwick  v.  Horsfall,  4  C.  B.  (N.  408;   Watkius  v.  Vince,  2  Stark.  368; 

S.)4r)0;  Fiizmaurice  V.  Bailey.  8  Ell.  Anon.,    12    Mod.    564;    Atwood    v. 

Bl.  808.  Munnings,  7B.  &  C.  278;  Edmunds  v. 

*  Barber    v.    Gingell,    3    Esp.    GO;  v.  Bushcll.  15  L.  J.  Q.  B.  20;  Golding 

Llewellyn  v.   Winckwortb,    13  M.  &  v.  Merchant,  43  Ala.  705;   Trickett  v. 

W.   598;    Cash    v.   Taylor,  Lloyd  &  Toudiiison,  13  C.  B.  (N.  S.)  663;  Lis- 

Welsby's  Mercantile  Cases,  178;  Par-  ter  v.  Allen,  31  Md.  543. 


Principal  and  Agent.  1215 

subsequently  I'ccognized  and  sanctioned  such  signature,  the  law 
will  imply  a  general  warrant  from  A.  to  13.,  authorizing  the  latter 
to  sign  it  in  A.'s  name,  and  A.  will  continue  liable  uptfn  such  con- 
tracts made  b}-  B.  in  the  name  of  A.,  until  the  determination  of 
the  im])lied  general  authority  has  been  publicly  announced.' 
From  repeated  instances  of  employment,  the  law  infers  the 
existence  of  an  implied  general  authority  to  the  party  employed 
to  bind  the  employer  within  the  limits  of  the  previously  recog- 
nized dealings.'^ 

§  1084.  Om/)iis  ratihdbitio  retrotraJiitur  et  mandato  priori 
aequiparatur—  ^  subsequent  ratification,  with  full  knowledge  of 
all  the  material  facts  of  an  act  done,  is  equivalent  to  prior  author- 
ity. The  subsequent  assent  by  the  principal  to  his  agent's  conduct, 
not  only  exhonerates  the  agent  from  the  consequences  of  a  depart- 
ure from  his  orders,  but  likewise  renders  the  principal  liable  on 
contracts  made  in  violation  of  such  orders,  or  even  when  there  has 
been  no  previous  retainer  or  employment,  and  this  assent  may  be 
inferred  from  the  conduct  of  the  principal.  The  subsequent  sanc- 
tion is  considered  the  same  thing,  in  effect,  as  assent  at  the  time, 
the  distinction  being  that  where  the  authoritj'  is  given  beforehand, 
the  party  giving  it  must  trust  to  his  agent — if  after  the  act,  the 
party  knows  all  has  been  done  according  to  his  wishes.  A  ratifi- 
cation of  the  unauthorized  acts  of  an  agent,  in  order  to  be  effect- 
ual and  binding  on  the  principal,  must  have  been  made  with  a 
full  knowledge  of  all  material  facts,  unless  he  means,  without 
inquiry,  to  take  upon  himself  the  responsibility  of  what  the 
other  may  liave  said  or  done,  and  to  adopt  all  his  acts,  and  that 
ignorance,  mistake,  or  misapprehension  of  any  of  the  essential 
circumstances  relating  to  the  particular  transaction  alleged  to 
have  been  ratified,  will  absolve  the  principal  from  all  liability  by 
reason  of  any  supposed  adoption  of,  or  assent  to  the  previously 
imauthorized  acts  of  the  agent. ^ 

»  Xeal  V.  Irving,  1  Esp.  61;  Brockel-  Ins.  Co.,  58  Pa.  St.  443;  Bevin  v.  Ins. 

bank  v.  Sugrue,  5  C.  &  P.  21.  Co.,  23  Conn.  244;   Viall  v.  Ins.  Co., 

5  Todd  V.    Robinson,  R.  &  M.  217;  19   Barb.  440;   Bennecke   v.  Ins.  Co., 

Oilman  v.    Robinson,  R.  &  M.  226;  105  U.  S.  360;  Bank  v.  Drake,  29  Kas. 

Hazard  V.  Trcadwdl,  1  Str.  506.  311;   Brock   v.    Jones,    16   Tex.  461; 

»  Combs   V.    Scott,    12   Allen,    493;  Menkens  v.  Watson,  27   Mo.  163;    It. 

Owings  V.  Hall,  9  Pet.  607;   Diehl  v.  R.  Co.  v.  Middletou,  20  111.  629;  Rouih 


1216 


TiiK   Law  of  Estoppel. 


§  1085.  The  principal,  when  informed  of  tfie  unauthorized 
acts  of  his  agent,  with  respect  to  property,  must  within  a  reason- 
able time  elect  to  approve  or  disaffirm  them.  If  he  does  not 
disaffirm  them,  and  so  inform  the  agent,  the  latter  may  presume 
tliat  his  conduct  has  been  affirmed.  It  is  not  essential  to  a  ratifi- 
cation by  a  principal  of  the  unauthorized  or  defectively  executed 
act  of  an  agent,  that  it  should  be  expressed  in  words,  but  it  may 
be  implied  from  the  acts  and  conduct  of  the  principal,  or  it  may 
be  inferred  from  acquiescence,  and  the  facts  and  circumstances 
of  each  case.  Such  ratification  may  be  presumed,  when  the  acts 
and  conduct  of  the  principal  are  inconsistent  with  any  other  sup- 
position than  that  he  intended  to  ratify  the  transaction,  or  when 
he  receives  and  holds  the  fruits  thereof,  or  an  intention  to  abide 
by  the  agent's  act,  though  it  was  unauthorized  or  defectively 
executed.  Even  his  silence  may  raise  a  conclusive  presumption, 
especially  where  it  is  either  contrary  to  his  duty,  or  has  a  ten- 
dency to  mislead  the  agent.'     Thus,  where  a  contract  made  by  an 


V,  Tliompson,  13  East,  274;  Foster  v. 
Bates,  12  M.  &  W.  22G;  Adams  v. 
Power,  52  Miss.  828;  Duvidson  v. 
Stauk-y,  2  M.  &  G.  921 ;  Horsidl  v. 
F:iuntieroy,  10  B.  &  C.  909;  Bell  V. 
Cunniiiirhiira,  G  Pet.  69;  Hc^lderness 
V.  Baker.  44  N.  H.  414;  Lester  v. 
Kinney,  iJl  Coun.  8;  Copelaiui  v.  Ins. 
Co.,  G  Pick.  2U2;  Dickenson  v.  Con- 
way. 12  Allen,  487;  Day  v.  Holmes, 
103  Mass.  31)6;  Hawkins  v.  Baker,  46 
N.  Y.  660;  Coombs  v.  Scott.  12  Allen, 
493;  Pittsburg  v.  Gazzara.  32  Pa.  St. 
140;  Walters  v.  Munroe,  17  Md.  150; 
Maxy  V.  Heckthorn,  44  111.  437;  Ex- 
press Co.  V.  Trego,  35  Md.  419;  Mapp 
V.  Pliipps,  32  Ga.  72;  Manning  v. 
Gasberie,  27  Ind.  399;  Mummy  v. 
Haggerty,  15  La.  Ann.  208;  Hardeman 
V.  Ford.  12  Ga.  205;  Ins.  Co.  v.  Iron 
Co.,  21  Wis.  458;  Billings  v.  Morrow, 
7  Cal.  171;  Delaney  v.  Levy,  19  La. 
Ann.  251;  Williams  v.  Strong,  6  Coidw. 
303;  Todrick  v.  Rice,  13  Iowa,  214^ 
Humphrey  v.  Havens,  12  Minn.  298; 
Dodge  V.  McDonnell,  14  Wis.  535; 
Bank  v.  Jones,  18  Tex.  81;  Freeman 


V.  RoshfT,  13  A.  &  E.  (N.  S.)  780; 
Fitzhugh  V.  Sackett,  50  N.  Y.  699; 
Kerr  v.  Sharp,  83  111.  199;  Stein  v. 
Kendall,  1  111.  App.  103;  Lewis  v. 
Reid,  13  M.  &  W.  834;  Aliern  v 
Goodspeed,  72  N.  Y.  108;  McClelland 
v.  Whitely,  15  Fed.  R.  22;  .Johnson 
V.  Roy.sler,  88  N.  C.  194;  Smith  v. 
Kidd.  68  N.  Y.  130;  Baldwin  v.  Bur- 
rows, 41  N.  Y.  212;  Dedham  v.  Slack, 
6  Cush.  408;  Yellow,  &c.  Co.  v. 
Stevenson,  5  Nev.  224  ;  Benninghoff 
V.  Ins.  Co.,  93  N.  Y.  495. 

'  Maddux  v.  Bevan,  39  Md.  485; 
Mining  Co.  v.  Bank.  2  Col.  T.  248; 
Lawrence  V.Taylor,  5  Hill,  108;  Meyer 
V.  .Morgan,  51  Miss.  21;  Gold,  &c. 
Co.  V.  Bank,  96  U.  S.  640;  Hatch  v. 
Taylor,  ION.  H.  538;Taylorv.  Agri- 
cultural, &c.  Ass'n,  68  Ala.  229; 
Booker  v.  Stiuehtiel.l,  47  Me.  340; 
Codwise  v.  Hacker,  1  Caiues,  526; 
Neal  V.  Ewing.  1  Esp.  61;  Barber 
V.  Giugell,  3  Esp.  60;  Bank  v. 
Smith,  5  Conn.  71;  Booker  v.  Tully, 
2  Hun,  308;  Stewart  v.  Fonda, 
19  Hun,  191;   Despatch  Line  v.  Bel- 


Pjiincipal  and   Agent.  1217 

agent  is  voidable  at  the  election  of  his  principal,  snch  election 
must  be  made  within  a  reasonable  time  after  full  knowledge  is 
acquired  by  the  principal  of  the  circumstances  under  which  the 
contract  was  made,  otherwise  it  will  be  binding  upon  him. 
Where,  upon  full  knowledge  of  all  the  facts  affecting  his 
liability,  the  principal  promises  to  pay  an  account  stated  of  the 
amount  appealing  to  be  due  from  him  under  a  contract  previously 
voidable  at  his  election,  he  thereb}'  ratifies  the  contract.  A 
contract  made  between  two  corporations,  through  their  respective 
boards  of  directors,  is  not  voidable  at  the  election  of  one  of  the 
parties  thereto,  from  the  mere  circumstances  that  a  minority  of 
its  board  of  directors  are  also  directors  of  the  other  company. 
The  plaintiff  and  defendant,  by  their  respective  boards  of 
directors,  entered  into  a  contract,  whereby  the  plaintiff  agreed  to 
supply  the  defendant  with  all  the  rolling  stock  required  in  the 
operation  of  its  railway  for  the  period  of  seven  years,  at  an  agreed 
rental  to  be  paid  monthly.  The  five  persons  composing  the 
plaintiff's  board  of  directors  were  members  of  the  defendant's 
board,  which  consisted  of  thirteen  persons.  At  the  meeting  of 
the  defendant's  board,  at  which  the  terms  of  said  contract  were 
agreed  upon  and  confirmed,  tliere  were  present  only  eight  direct- 
ors, two  of  whom  were  directors  of  the  plaintiff.  The  plaintiff 
supplied  the  rolling  stock  as  agreed,  and  the  defendant  received 
and  used  the  same  in  the  operation  of  its  railway  for  the  period 
of  nearly  two  years  and  a  half,  when  the  contract  was  terminated  ; 
if  the  contract,  under  the  circumstances  of  the  case,  was  voidable, 
in  equity,  at  the  election  of  the  defendant,  within  a  reasonable 
time  after  the  same  was  made,  for  want  of  a  quorum  of  directors 
at  the  meeting  at  which  the  contract  was  agreed  upon  and  con- 
lii'med  who  were  not  directors  of  the  plaintiff,  the  delay  in  exer- 


lamy,    12   N.  H.   206;    Mops    v.   Ros-  Berry,  3  111.  App.  25G;  Breed  v.  Bank, 

sie  Co.,  5  Hill,  137;  Johnson  v.  Jones,  4  Col. 481;  Saveland  v.  Green,  40  Wis. 

4Biub.  36i);  Williams   v.  Merritt,  23  431;    Morse   v.    Ryan,    26   Wis.    356; 

111.  623;  Payne  v.    Smith,  12   N.    H.  Bolton   v.    Ililler.sden,    1  Ld.  Raymd. 

34;  Richards   v.    Folsom,  11  Me.   70;  224;  Thowld   v.    Smith.  11  Mod.   72; 

Campbell  v.  Wallace,  12  N.   H.  362;  Bj-ruer  v.  Doughty,   13  Ga.  46;  John- 

Finiiej'  v.  Ins.  Co.,  5  Met.  172;  Patton  son  v.  Smith,  21    Conn.  627;  Bronson 

V.    Britton,  10    Ired.    8;     Bryant    v.  v.  Cliappell,  12  Wall.  681;   Myers   v, 

Sbeeh}',    5   Dana,    530;     Hawkins   v.  Ins.  Co.,  32  Hun,  321. 
Lange,    22    Minn.   557;    Johnson  v. 
Vol.  I.— 77 


1218  The  Law  of  Estoppel. 

cising  tlie  election  to  iivoid  it  operated  :vs  a  waiver  of  the  right  so 
to  do.'  So  a  bondliolder  of  a  former  organization  has  no  standing 
in  eliancer}'  to  distiolve  the  present  oi-gauization  of  a  raih-oad 
company,  for  wliich  his  agent  had  voted  his  bonds,  it  was  alleged, 
in  excess  of  authority,  and  to  enforce  a  different  plan,  where  it 
appears  that  he  h.;\d  known  of  what  his  agent  was  doing,  but  liad 
not  dissented,  and  tliat  he  had  accepted  his  share  of  the  bonds  of 
the  new  organization,  had  offered  to  buy  and  sell,  and  had  brought 
suit  for  them.  Such  conduct  ratified  the  act,  or,  inducing  others 
to  believe  he  had  acquiesced  in  the  organization,  worked  an  estop- 
pel.' Wlien  a  person  assumes  in  good  faith  to  act  as  agent  for 
another  in  any  given  transaction,  but  acts  without  authority, 
whether  the  relation  of  principal  and  agent  docs  or  does  not  exist 
between  them,  the  person  in  whose  behalf  the  act  was  done,  upon 
being  fully  informed  thereof,  must,  within  a  reasonable  time, 
disaffirm  such  act,  where  his  silence  might  operate  to  the  preju- 
dice of  innocent  parties,  or  he  will  be  held  to  have  ratified  such 
unauthorized  act,  on  the  principle  that  he  who  is  silent  when  he 
should  speak,  will  not  be  permitted  to  speak  when  justice  requires 
him  to  keep  silent.'  Although  fraud  is  ordinarily  an  element  of 
estoppel,  nevertheless  where  a  payment  is  made  to  an  agent, 
without  due  authority  of  the  principal,  his  gross  carelessness  in 
not  disavowing  the  payment,  and  long  continued  neglect  to  put 
the  defendants  on  their  guard,  and  silence  which  operated  to 
mislead  and  prevent  them  from  pursuing  their  remedy  against 
the  agent,  will  constitute  an  estoppel.* 

§  1086.  A  municipal  corporation  may  ratify  the  unauthorized 
acts  and  contracts  of  its  agents  or  officers, -which  are  within  the 
corpoiate  powers,  but  not  otherwise.  Ratification  may  frequently 

'  Rolling   Stock   Co.  v.  Ky.  Co.,  34  Cai.    539;    Arm.strong  v.   Gilclirist,  '3 

Ohio  St.  450;  S.    C,  33  Am.  R.  380.  John.'^.  Cas.  430;  Amory  v.  lIamilto:i, 

■■'  Matlliews   v.   Murchison,  15  Fed.  17  Mass.  109;  Clay  v.  Spralt,  7  Eiisli, 

Rep.  G91.  334;  Mundorf  v.  Wicker.-ham,  63  Pa. 

sSaveland  v.  Green.   41   Wis.  481;  St.  87;  Evans  v.    Busbner,   1    Ileisk. 

Minincr  Co.  v.  liank,  92  U.  S.  104;  Bur-  291;  Penn  v.  Evans,  28  La.  An.  576, 

gcss  V.  Harris,  47  Vt.  322;  Faninutoa  Fiances  v.  Kerker,  85  111.  190;    Danst 

V.  Field,  10  Wall.  148;  Ladd  v.  llilde-  v.  Gale,  83  III.  13G;  Wright   v.  Boyn- 

brant,  27  Wis.  135;  Benedict  v.  Sniitli,  ton,  37  N.  H.  9. 

10  Paige,  130;  Cairnes  v.  Bleeker,   12         *  Bailey  v.  United  States,  15  Ct.  of 

Johns.    304  ;    Codwise   v.    Hacker,    1  CI.  490. 


Principal  and  Agent. 


1219 


be  inferred  from  acquiescence,  after  knowledge  of  all  the  material 
facts,  or  from  acts  inconsistent  witli  any  other  supposition.  The 
same  principle  is  applicable  to  corporations  as  to  individuals.* 
Thus,  it  may  ratify  unauthorized  expenditures,  not  ultra  vires, 
which  may  be  deemed  beneficial,  as  in  the  case  of  natural 
persons,  such  ratification  is  equivalent  to  prior  authorization.' 

§  1087.  The  institution  of  a  suit  by  the  principal  to  enforce  a 
contract  entered  into  in  his  name,  by  an  unauthorized  agent,  is  a 
sufficient  ratification  of  the   acts  of  such  agent,  and   estops  the  ^^ 
other  party  to  the   contract  setting   up  as  a  defense  the   agent's 
original  want  of  authority.' 

§  1088.  A  ratification  by  the  principal  of  part  of  an  unauthor- 
ized transaction  of  his  agent  is  a  confirmation  of  the  whole,*  as 
he  cannot  adopt  part  without  adopting  all.'     A  principal   cannot 


'  People  V.  Swift.  01  Cal.  26;  Bleu 
V.  Bear  River  Co.,  20  Cal.  G02;  Peter- 
son V.  Mayor,  17  N.  Y.  449;  Gas  Co. 
V.  San  Francisco,  9  Cal.  453;  Hoyt  v. 
Tliompson,  19  N.  Y.  307;  Clarke  v. 
Lyon  Co.,  8  Nev.  181;  Howe  v.  Kee- 
ler,  27  Conn.  53S;  Emerson  v.  New- 
berry, 13  Pick.  377;  Hodges  v.  Buf- 
falo, 3  Denio,  110;  Peopl-  v.  Fla.iTg, 
17  N.  Y.  584;  S.  C,  1<J  How.  Pr.  36; 
Mills  V.  Gleasotj,  11  Wis.  470;  S.  C, 
8  Am.  R.  693;  Brady  v.  Mayor  of 
New  York,  20  N.  Y.  312;  Delafield  v. 
State,  2  Hill,  159;  S.  C,  8  Paig.',  531; 
26  Wend.  193;  College  v.  Township, 
13  Iowa,  55;  Merrick  v.  Plank  Road 
Co.,  11  L)wa,  74;  Detroit  v.  .Jack-on, 
1  Doug.  (Mich )  106;  Crawsliaw  v. 
Roxbury,  7  Gray,  374;  Burrill  v.  Bos- 
ton, 2  Clifford  C.  C.  590. 

-  Backniau  v.  Cbarlestown,  43  N. 
H.  125;  Harris  V.  School  Dis.  28  K 
H.  65;  Wilson  v.  School  Dis.  32  N. 
H.  118;  Keyser  V.  School  Dis.  35  N. 
H.  477;  Episcopal  Society  v.  Episco- 
pal Church.  1  Pick.  372;  Bank  v.  Pat- 
terson, 7  Cranch,  399;  Randall  v.  Van 
Vechlen,  19  Johns.  60;  Trott  v.  War- 
ren, 11  Me.  327;  Topsham  v.  Rogers, 


43  Vt.  199;  People  v.  Swift,  31  Ca!. 
26;  De  Grave  v.  Monmouth,  19  E.  C. 
L.  300. 

^  Wieseger  v.  Wheeler,  14  Wis.  101; 
Emersmi  v.  Newbury,  13  Pick.  379; 
Fisher  v.  Willard,  13  Mass.  379; 
Krountze  v.  Price,  40  Miss.  341;  Bank 
V.  Beale,  34  N.  Y.  473;  Overly  v. 
Overl}^  18  La.  An.  546;  Farrar  v. 
Duncan,  29  La.  An.  126;  Dodge  v. 
Lambert,  2  Bosw.  570;  German  town, 
&c.  Co.  v.  Dhcin,  43  Wis.  420;  Smith 
V.  Miller,  25  N.  Y.  619;  Maun  v.  Ins. 
C3.,  40  Wis.  549;   Eadie   v.  Albaugh, 

44  Iowa,  519;  Moore  v.  University,  83 
Intl.  376;  Farrar  v.  Patterson,  52 
Iowa,  420;  Benson  v.  Liggett,  78  Ind. 
453;  Swope  v.  Ins.  Co.,  8  W.  N.  C. 
481;  Riddle  v.  Hail,  99  Pa.  St.  116. 

•*  Fargo  V.  Ladd,  6  Wis.  106;  New- 
ell V.  Ilurlljurt,  2  Vt.  351;  Trust  Co. 
V.  Walworth,  1  N.  Y.  434;  Beckwith 
V.  Baxter,  3  N.  H.  67;  Church  v.  Ster- 
ling, 16  Conn.  389;  Bank  v.  Sharp,  13 
IMiss.  75;  Blair  v.  Pathkiller,  3  Yerg. 
407;  Bank  v.  Bank,  Kelly   (Ga.HlS. 

5  Fowler  v.  Bank,  67  N.  Y.  14:3; 
Trust  Co.  V.  Walworth,  1  N.  Y.  433; 
Strasser    v.    Conklin,   54    Wis.    102; 


1220 


The  h\w  OF  Estoppel. 


be  allowed  to  conduct  himself  in  such  a  manner  as  to  mislead  the 
public  in  re<>jard  to  the  authority  of  his  a^eiit,  and  then  avoid  the 
consequence  of  his  acts  by  a  single  disclaimer  of  the  authority  of 
such  agent ;  nor  can  a  principal  adopt  a  contract  made  by  his 
accent  or  attorney  without  authority,  under  which  he  has  acquired 
the  title  to  property  without  further  litigation,  so  far  as  to  hold 
the  title  obtained  under  it,  and  repudiate  the  conditions  upon 
\vhich  the  sale  was  allowed  to  take  place.  If  he  repudiates  at  all, 
he  must  repudiate  the  whole,  so  as  to  restore  the  party  to  his 
former  position.'  A  principal  cannot  ratify  the  acts  of  an  agent 
for  his  own  benefit,  and  repudiate  them  when  adversely  interested." 
Where  an  agent,  for  the  purchase  of  lands,  without  authority 
from  his  principal,  employs  a  sub-agent  to  make  such  purchases, 
it  is  a  sufficient  ratification  of  the  acts  of  such  sub-agent  if  the 
principal  subsequently  agrees  to  receive  a  deed  of  his  proportion 
of  the  land  purchased,  and  to  submit  the  question  of  the  agent's 
expenses  to  arbitration.  The  rule  that  a  principal  is  not  bound 
by  a  ratification  of  an  agent's  act,  which  is  made  without  full 
knowledge,  does  not  require  that  he  shall  have  had  full  knowl- 
edge of  his  rights.  It  is-  sufficient  that  he  had  full  knowledge  of 
the  facts  and  circumstances  of  the  transaction.'  By  receiving 
and  appropriating  the  proceeds  of  a  sale  made  by  an  agent,  with 
knowledge  of  the  facts,  the  principal  ratifies  the  sale,  and  makes 
himself  answerable  therefor.^ 


Evans  v.  Hunter,  28  N.  Y.  389: 
Corning  v.  Scotland,  '6  Hill,  552; 
Skinner  v.  Dayton,  1!)  Johns.  554; 
Odiorne  v.  Mnxey,  13  Mass.  182;  Ins. 
Co.  V.  DeWolf,  6  Pick.  63;  Kiider  v. 
Trustees,  31  Iowa,  541;  Menkens  v. 
Wiitson,  27  Mo.  38;  Coleman  v.  Stark, 
1  Greg.  115;  Gaines  v.  Miller,  111  U. 
S.  395;  Small  v.  Attwood,  (i  C.  L.  & 
F.  232;  Henderson  v.  (/'unimiiigs,  44 
111.  325. 

'  Biistow  V.  AVhitniore.  I)  H.  L.  C. 
391;  Henderson  v.  H.  R.  Co.,  17  Tex. 
560;  Crump  v.  Mining  (Jo.,  7  Gratt. 
352;  Larapsou  v.  Arnold,  19  iima, 
479;  Paine  v.  Wilcox,  16  Wis.  241; 
Grove  v.  Hodges,  55  Pa.  St.  504; 
Median  v.  Forrester,  52  N.  Y.  277. 


■-•  StoTi'e  v.  U.  S.,  19  Wall.  13;  Stark 
V.  Stark;  94  U.  S.  477;  Beat  v.  Ins. 
Co.,  K;  Wis.  241;  Bell  V.  Byersoi!,  11 
Iowa,  233;  Silloway  v.  Ins.  Co.,  13 
Gray,  13;  Winder  v.  Lane,  14  Md- 
124. 

^  Stringhani  v.  Sehooner,  4  Ben. 
16;  Coles  v.  Trecothick,  9  Ves.  234; 
Gray  v.  Murray,  3  Johns.  167;  John- 
son V.  Cunningham,  1  Ala.  249;  Laus- 
satt  V.  Lippincott,  6  S.  &  R.  386; 
Rawls  v.  Deshler,  3  Keyes,  572;  Hen- 
derson V.  Barnwell,  1  Y.  &  J.  385; 
Burgess  v.  Harris.  47  Vt.  322;  .Miller 
V.  Bank,  30  3Id.  392;  Spright  v.  Han- 
ley,  39  N.  Y.  441. 

^  Griffin  v.  Iowa,  &c.  Co.,  21  Iowa, 
282;   Francis  v.    Kerker,  85  111.   190; 


Pkincipal  and  Agent.  122i 

§  1089.  An  agent  who  acts  wliolly  and  exclusively  as  the 
agent  of  the  money  lender  in  negotiating  a  loan,  and,  in  addition, 
to  taking  security  calling  for  the  highest  legal  rate  of  interest, 
charges  and  receives  a  honus  for  his  services,  ninst  be  presumed 
to  be  acting  within  the  scope  of  his  authority  in  taking  such 
honufi,  and  makes  his  principal  chargeable  with  the  usury.' 
Although  an  agent  docs  not  comply  with  an  agreement,  made 
between  him  and  his  principal,  as  to  the  manner  in  which  a 
written  authority,  ample  on  its  face,  shall  be  exercised,  yet  con- 
tracts made  bj'  such  agent  with  third  persons,  who  have  no 
knowledge  of  such  agreement,  will  be  binding  upon  the  prin- 
cipal, if  they  are  within  the  limits  of  the  authority  expressly 
conferred.^ 

§  1090.  If  a  party  assumes  to  act  on  behalf  of  another  h':"  is 
estopped  from  claiming  that  he  acted  for  his  own  benefit.  Thus 
a  party,  who,  in  making  a  verbal  contract  represents  that  he  is 
acting  in  concert  with  and  for  the  benefit  of  another,  and  being 
afterward  by  letter  requested  to  put  such  contract  in  writing, 
replies  that  the  person  with  and  for  whom  he  professes  to  be 
acting  will  come  and  arrange  it,  is  estopped  from  denying  the 
power  of  such  person  as  his  agent  to  bind  him  by  a  written  con- 
tract of  the  same  effect  as  tlie  verbal  one,  even  tljongh  it  is 
executed  by  such  agent  in  his  own  name  only.'  A  party  in  pos- 
session of  a    mill    site,  who  represents  to   a   dealer  in  l)uilding 

Hikkibrandt  v.    Crawford,    6    Lans.  S.  C,  46  Am.  R.  354;  Avila  v.  Chetn- 
503;   B.-iiik   V.   Coweu,   37  N.  Y.  320;  ical  Co.,  32  Hun,  1;  Lane  v.    Black, 
Cliaml)oilain   v.    Collinson,  45  Iowa,  21  W.  Va.  617;  GilTord  v.   LaudiiiK-, 
429;  Darst  v.  Gak,  83  111.   136;  Ham-  37  N.  J.  E.  137;  Lynch  v.  K.  K.  Co., 
iltou  V.  Bank,  22  Iowa,  306;  Evans  v.  GO  Md.  404;  S.  C,  45  Am.  K.  741. 
Buckner,   1   Heisk.    291;   Slocomb  v.  'Young   v.    Wright,   4    Wis.    144; 
Gage.  22  La.  Ann.  165;  Cochrjuie  v.  McFarland  v.  Carr,  16  Wis.  251. 
Chitwood,  59  111.  53;   Slater  v.  Irwin,  '^  Mosher  v.  Chapm,  12  Wis.  453. 
38  Iowa,  261;  Winlon  v.  Little,  94  Pa.  ^  Gamble  v.  Knott,  40  Ga.  199;  Hop- 
St.  64;  Davis  v.  Kruni,  12  ilo.  App.  kins  v.  Page,  2   Brock.  20;   Wilcocks 
279;  Wallace  v.  Lawyer,  90  Ind.  499;  v.  Pliillips,  1   Wall.  Jr.  47;  Barry  v. 
Breed   v.  Bank,  6  Cul.  235;   Huntley  Barry,  3  CJranch  C.  C.  120  ;   White  v. 
V.   Mathias,   90   N.   C.   107;  S.  C,  47  Macon,  3  Crauch,  250;   Smith  v.  Ken- 
Am.  R.  516;  White   v.   Leighton,   15  nedy,  1   Wash.   T.  06;    Lockwood    v. 
Neb.  424;  Lynch  v.  Trust  Co.,  5  Mc-  Thorn,  11  N.  Y.  170;  Troup  v.  Apple- 
Crary,  623;  Pope  v.  Distilling  Co.,  20  man,  52  Md.  456. 
F.  R.  35;  Rboda  V.  Anuis,  75  Me.  17; 


1222 


The  Law  of  Estoppel. 


materials  that  tlic  contract  for  such  site  was  taken  in  his  own 
name,  but  for  the  benelit  of  a  third  party,  and  tiiat  he  had  no 
interest  therein,  bnt  that  a  third  party  is  the  real  owner  thereof  ; 
and  procures  from  such  dealer  mateiials  for  a  mill  thereon,  in  the 
name  and  as  the  agent  of  such  third  party,  who,  as  he  says,  will 
pa}"  therefor,  and,  by  like  statements,  induces  such  material-man 
to  enforce  his  lien  on  the  mill  by  suit  against  such  third  party  ; 
is  thereby  estopped  from  asserting  that  he  is  himself  the  owner 
of  the  property,  as  against  the  purchaser  under  the  judgment  in 
the  lieu  suit ;  and  from  denying  that  such  a  third  party  was  in 
possession  through  him  as  agent.'  So  a  common  carrier  cannot 
deny  the  authority  of  the  agent  of  a  consignor,  after  having  made 
a  contract  of  affreightment  with  him  as  such  agent." 

§  1091.  Whenever  one  of  two  innocent  persons  must  suffer  by 
the  acts  of  a  third,  he  who  has  enabled  such  third  person  to  occa- 
sion the  loss  must  sustain  it.'     Whenever  the   very  act  of  the 


'  Smith  V.  Frost,  70  N.  Y.  65;  Bemis 
V  Becker,  1  Kas.  276;  Smith  v.  ]\Ic- 
Neal,  48  Pa.  St.  164;  Peabody  v. 
Leacli,  18  Wis.  657;  Reigard  v.']Mc- 
Neil,  38  111.  400. 

*  Baker  v.  JNIilwaukcc,  14  Iowa, 
214. 

»  Smith  V.  Kidd,  68  N.  Y.  131; 
Stowe  V.  U.  S.,  19  Wall.  13;  Hanks  v. 
Drake.  48  Barb.  186;  Filzherbert  v. 
Mather,  1  T.  R.  12;  Neville  v.  Wilkiu- 
son,  1  Bro.  Ch.  546;  Smith  v.  Board, 
59  111.  412;  Ruiz  v.  Norton,  4  Cal. 
355;  Rawls  v.  Deshler,  4  Abb.  App. 
Dec.  12;  Kessler  v.  Simmerschite,  1 
Tex.  50;  Mahan  v.  Dubuclet,  27  La. 
Anil.  45;  Coles  v.  Anderson,  8  Humph. 
489;  Iliorns  v.  Holton,  13  El.  <&  £. 
596;  Nicholson  v.  Hooper,  4  M.  &  C 
179;  Picard  v.  Sears,  6  A.  &  E.  469; 
Riley  v.  Quin;ley,  50  111.  304;  llertel 
V.  Bogert,  9  Paige,  52:  Chapman  v. 
Hamilton,  19  Ala.  121;  Bradish  v. 
Belknap.  41  Vt.  172;  Hearn  v. 
Nichols,  1  Salk.  289;  Lickbarrow  v. 
Mason,  2  T.  R.  63;  Lane  v.  Coulton, 
12  Mod.  432;  Troy   v.  R.  R.,  42  Vt. 


265;  Herrick  v.  Atwootl,  2  De  G.  & 
J.  21  ;  Brinkerhoff  v.  Lansing,  4 
Johns.  Ch.  G5;  Tliorne  v.  Mosher,  20 
N.  .1.  E.  257;  Williams  v.  Mitchell,  17 
]VIass.  98;  Schiiee  v.  Sclinee.  23  Wis. 
377;  Evans  v.  Bicknoll,  6  Yes.  173; 
Pearson  v.  Morgan,  2  Bro.  Ch.  388; 
Chidsey  v.  Porter,  21  Pa.  St.  390; 
Swethurst  v.  Taylor,  12  M.  &  W.  554; 
Dickson  v.  Green,  24  Miss.  612 ; 
Blount  V.  Robeson,  3  .Tones  Eq.  73; 
Smith  V.  McGuire,  3  H.  &  N.  554; 
Edmunds  v.  Bushnell,  L.  R.  1  Q. 
B.  97;  Stringham  v.  Schoener,  4  Ben. 
16;  Winton  v.  Hart,  39  Conu.  16; 
Scott  V.  Scott,  1  Cox.  378;  Dorris  v. 
Green,  16  Barb.  12;  Bank  v.  Bank. 
1  Ga.  418;  Milliugar  v.  Sorg.  61  Pa. 
St.  471;  Stair  v.  Reed,  11  Gratt.  281; 
Hunter  v.  Jameson,  6  Ired.  252;  Cur- 
tis V.  Tripp,  1  Iowa,  318;  Nelson  v. 
Cowing,  6  Hill,  336;  AYoodford  v. 
McClenuahan,  9  111.  85;  Skinner  v. 
Gunu,  9  Port.  305;  Bradford  v.  Bush, 
10  Ala.  386;  Lee  v.  Munroe,  7  Crauch, 
3G6;  Ezel  v.  Franklin,  2  Sneed,  216; 
Cocke  v.  Campbell,  13  Ala.  286. 


Pkincipal  and   Suuety.  1223 

agent  is  authorized  bj  the  terms  of  the  power,  so  that  bj^  com- 
pariug  the  act  done  bj  the  agent,  with  the  language  of  tlie  power, 
the  act  itself  is  warranted  thereby,  sucli  act  is  binding  on  the 
principal  as  to  all  persons  dealing  in  good  faith  with  the  agent.' 
It  is  a  general  rule  that  a  party  cannot  contradict  his  own  note 
or  bond.^  In  accordance  with  this  elementary  principle,  one 
expressly  agreeing  to  be  bound  as  principal  is  estopped  from 
asserting  as  against  the  obligee,  that  he  is  a  surety/  A  party 
who  for  usurious  consideration  grants  extension  of  time  for  pa3^- 
ment  to  the  maker  of  a  note,  whereby  the  surety  is  released,  is 
estopped  from  setting  up  such  usury  to  defeat  the  rights  which 
the  surety  acquired  by  reason  of  such  extension/  If  principal 
and  surety  are  jointly  and  severally  bound  in  a  bond,  though 
there  is  no  express  admission  on  the  face  of  the  instrument  that 
all  are  principals,  yet  the  surety  is  estoj^ped  from  alleging  that 
he  is  surety  only/  Any  act  of  a  principal  which  estops  him 
from  setting  up  a  defense  personal  to  himself,  operates  equally 
against  his  sureties/ 

§  1092.  The  discharge  of  the  surety  is  often  dependent  on 
the  doctrine  of  equitable  estoppel  and  not  on  the  variation  of  the 
contract  with  the  principal.  It  will  not  take  place  unless  a  course 
has  been  adopted  on  the  faith  of  the  statements  or  promises  of 
the  creditor  which  cannot  be  retracted  or  withdrawn  without 
injury,'  nor,  as  it  would  seem  unless  the  conduct  of  the  creditor 
is  marked  by  some  violation  of  good  faith  or  fair  dealing." 
Wrong  on  one  side  and  injury  on  the  other  being  the  essential 
ingredients  of  every  equitable  estoppel.  A  statement  by  the 
holder  of  a  bill  that  it  had  been  paid,  by  which  the  indorser  was 
led  to  delay  proceedings  against  the  acceptor  until  the  latter 
became  insolvent  was,  however,  held  to  be  a  good  defense  to  the 
indorser  whether  the  statement  was  made  in  good  faith  or  fraud- 

'  Munay  v.    Binninger,    3   Keyes,      46G;  Heath  -v.    Bank,  44  N.  H.  174; 
107.  Bank  v.  Bukhvin,  41  N.  H.  434. 

2  Miller  v.  Elliott,  1  Ind.  484;  Hiatt         •»  Riley  v.  Giegg,  16  Wis.  666. 

V.   Simpson,  8  Ind.  256;   Madison  v.  ^  Dibble  v.  Duncan,  2  McLean,  553; 

Stevens,  10  Ind.  1;  Jlenaugh  v.  Chan-  Spiigg  v.  Bank,  14  Peters,  201. 

dler,  89  Ind.  94.  «  McCabe  v.  Raney,  32  Ind.  309. 

3  Sprigg  V.  Bank,  10  Peters,  257;  S.  '  Hogaboom  v.  Herrick,  4  Vt.  131. 
C,  14  Pet.  201;  Dart  v.  Sherwood,  7  *  Wilson  v.  Green,  25  Vt.  450. 
Wis.  446;  Bank  v.  Redington,  52  Me. 


1224  The  Law  of  Estoppel. 

ulentl)'.'  Those  who  have  bound  theniselves  as  eo  obligors  or 
co-eon  tractors  are  not  allowed  to  show  that  their  true  character  is 
that  of  sureties."  A  surety  who  has  bound  liiniself  as  co-obh'gor 
by  an  instrument  under  seal  is  estopped  from  showing  the  real 
nature  of  his  obligation  as  a  defense  to  an  action.'  A  party  wlio 
has  bound  himself  to  a  direct  and  innnediate  performance  is 
estopped  from  showing  that  his  obligation  is  that  of  a  guarantor, 
and  that  he  is  answerable  only  in  the  case  of  the  default  of  a 
co-contractor  or  other  person.  A  holder,  by  electing  to  fix  the 
indorser's  liability  as  the  conditional  one  of  assignor,  and  seeking 
to  enforce  the  same,  is  estopped  from  setting  up  the  absolute 
liability  of  guarantor,  either  by  writing  over  the  indorser's  name, 
or  by  making  proof  of  a  verbal  guaranty.* 

§  1093.  A  promise  by  the  creditor  to  exonerate  the  surety,  or 
to  look  solely  to  the  principal,  can  have  no  effect  of  itself  upon 
the  liability  imposed  by  the  contract,  unless  founded  upon  a  suffi- 
cient consideration.  But  when  the  surety  is  induced  b}'  such  a 
promise,  to  surrender  property  or  securities  received  from  the 
principal,  or  to  ])ostpone  or  relinquish  any  of  the  means  of 
indemnity,  to  which  he  miglit  otiierwise  have  resorted,  it  will 
take  effect  as  an  equitable  estoppel,  and  deprive  the  ])romisor  of 
the  power  of  retraction.^  The  result  is  the  same,  when  the 
creditor  mistakenly  and  without  any  fraudulent  intent,  informs 
the  surety  that  the  debt  is  paid,  or  adopts  some  other  course,  of  a 
nature  to  mislead  him  with  regard  to  the  extent  or  existence  of 
his  liability,  and  the  latter,  in  consequence,  surrenders  a  security 
held  for  its  payment."  Where  the  guarantor  of  a  note  expi-essed 
to  the  nuikers  his  willingness  that  one  of  them  should  be 
discharged  from  liability,  and  the  payee  having  been  informed  of 
the  fact  by  the  maker  whose  name  was  to  remain  upon  the  note, 
caused  the  other  maker's  name  to  be  erased.     In  an  action  by  the 

'  Kingsloy  V.  Vernon,  4  Sandf.  361 ;  Deberry    v.    Adams,    9    Yerger,    52; 

Ayer  v.  Tilton,  43  N.  H.  407.  Dozier   v.    Lea,    7    Humphreys,    520; 

«  Bull  V.  Allen,  19  Conn.  101;  Bank  Pintard  v.  Davis,  22  N.  J.  L.  632. 

V.  Wood,  10  Vt.  582;  Yates  v.  Donald-  ■»  Clayes  v.  White,  65  111.  357. 

son,  5  3Id.    389;   Bank  v.  Shailor,  20  *  Harris   v.    Brooks,    21    Pick.   195; 

Conn.  18.  Bank    v.    Klinemuth,    7   Watts,    525; 

»  Asldiy   V.    Piddufk,    1    ]\r.  &   W.  White  v.  Walker,  31  111.  422. 

564;   Ward   v.    Johu.^on,  6   Mumf.  0;  "  Carpenter  v.  King.  9  Met.  511. 

Steptoes     V.      Harvey,     Leigh,     501;  Wilson  v.  Green,  25  Vt.  450. 


Trustees.  1225 

payee  against  the  guarantor,  it  was  held,  that  the  latter  was 
estopped  from  denying  that  his  liability  continued  after  the  dis- 
charge of  the  said  maker.-  So,  where  a  uotc  with  two  sureties 
was  to  be  extended  by  the  execution  of  a  new  one  with  the  same 
sureties,  a  new  note  was  given  with  the  understanding  that  one 
of  the  sureties  whose  name  was  omitted  should  sign  it,  but  the 
note  was  mislaid  and  never  signed.  In  an  action  on  this  note, 
the  sureties  were  held  not  liable  ;  action  was  then  brought  on  the 
original  note  (which  had  not  been  surrendered),  the  sureties 
were  estopped  from  setting  up  any  suspension  of  their  liability 
by  the  giving  of  the  second  note,  and  the  judgment  against  the 
principal  was  a  discharge  to  them  as  to  the  amount  collected 
thereon." 

§  109-4.  If  the  cestui  qtte  trust  concur  in  the  breach  of  the 
trust,  he  is  estopped  from  proceeding  against  the  trustee^  as  by 
permitting  and  encouraging  the  trustee  to  hold  himself  out  as 
absolute  owner  of  the  trust  property,  and  will  be  postponed  to  an 
innocent  purchaser  who  has  been  misled  thereby.*  If  a  married 
woman  or  an  infant,  by  a  fraud,  procure  the  breach  of  the  trust, 
they  will  be  estopped  to  proceed  for  such  breach  ;  for  they  have 
no  privilege  to  commit  frauds.*  When  the  cestui  que  t?nist  con- 
curs with  a  trustee  in  the  misapplication  of  the  trust  funds,  he 
cannot  be  heard  in  a  court  of  equity  to  complain  of  the  acts  of 
the  trustee  which  he  has  himself  knowingly  authorized.      And 

'  Knoebel  v.  Kircher,  33  111.  308.  Porter,    25  Beav.  336;    Life  Asso.  of 

2  Williams  v.  Martin,  3  Duvall,  491.  Scotland  v.  Siddall,  3  De  G.  F.  &  J. 

^Brioe    v.    Stokes,    11     Ves.    319;  74;   Smith   v.    French,    2    Atk.    343; 

Walker    v.    Symonds,   3    Swans.  64;  Mayer  v.  Gould,  1  Atk.  615;  Kyder  v. 

Wilkinson    v.   Parry,    4    Russ.    273;  Bickerton,  3  Swans.  80. 

Cocker   v.  Quayle,    1   11.    &   M.    534;  *  Reg.  v.  Shropshire,  L.  R.  8   Q.  B. 

Nail  V.  Punter,  5  Sim.  555;   Newman  430;  Waldron  v.  Sloper,  1  Drew.  193; 

V.    Jones,     Finch,    58  ;     Fellows    v.  Rice  v.  Rice,.  2  Drew,  73. 

Jlitchcll,   1   P.   Wras.    81;    Booth  v.  »  Dj^yig  y    Tingle,  8  B.  Mon.  359; 

Booth,  1  Beav.  125;  Langford  v.  Gas-  Hall  v.    Timmons,  3  Rich.  Eq.  130; 

coyne,  11  Yes.  336;  White  v.  White,  Stoolfoos  v.  Jenkins,  12  S.  &  R.  399; 

5  Ves:.  555;  in  re  Chertsey   Market,  6  Wright  v.  Arnold,  14  B.  Mon.  643. 

Price,  380;   Baker   v.  Carter,  1  Y.  &  «*  Buckeridge  v.  Classe,  1  Cr.  &  Ph. 

Col.  355;  Byrchail  v.  Bradford,  6  Mad.  135;  Fellows  v.  Mitchell,  1  P.  Wms. 

13;  Morley  v.  Hawke,  3  Y.  &  J.  530;  81;  Walker  v.  Symonds,  3  Swanst.  64; 

Small  V.  Atwood,  3  Y.  &  J.  530;Fyler  Bj^rchall  v.    Bradford,  6  Madd.    13; 

V.   Fyler,    3  Beav.    550;    Griffiths  v.  Wilkinson  v.  Parry,  4  Russ.  273. 


1226  The  Law   of  Estoppel. 

this  applies  to  persons  under  disability,  as  feme  coverts,  or  infants 
where  they  have  by  their  own  frauds  induced  the  trustees  to 
deviate  from  the  proper  performance  of  their  duties.'  A  married 
woman,  with  regard  to  ]>roperty  settled  to  her  sepai'iite  use,  is  to 
be  treated  as  a  feme  sole.  She  may  bind  her  separate  estate  by 
her  concurrence  in  a  breach  of  trnst."  Acquiescence  on  the  part 
of  cestui  que  trusts  may  altogether  discharge  trustees  from  all 
liability.  Tln^,  where  a  cestui  que  trust  sui  Juris  acquiesces  in  an 
improper  investment,  he  cannot  afterward  call  it  in  question.' 
But  it  must  be  made  with  his  full  knowledge,*  and  without  any 
misrepresentation  or  concealment  on  the  part  of  the  trustees.'' 

§  109.5.  A  cestui  que  trust  may  confirm  an  invalid  sale,  so  that 
he  cannot  afterwards  set  it  aside.'  But  in  order  to  constitute  a 
valid  confirmation  a  person  must  be  aware  that  the  act  he  is  doing 
will  have  the  efiect  of  confirming  an  impeachable  transaction.' 
Where  a  debt  due  a  cestui  que  trust  has  been  paid  to  the  trustee, 
who  had  no  authority  to  receive  it,  the  cestui  que  trust  is  estopped 
from  collecting  it  if  he  has  received  the  benefit  of  such  payment.* 
Where  a  will  gives  to  the  executor  no  autb.ority  to  sell  the  testa- 
tor's real  estate  or  to  control  it,  but  with  the  knowledge  of  the 
heirs  he  applies  to  the  court  and  obtains  an  order  authorizing  him 
to  sell,  and  with  the  consent  and  at  the  request  of  the  lieirs  he 
does  negotiate  a  sale,  receives  the  purchase-monev  ami  conveys  by 

»  Savage  v.  Foster.  9  Mod.  35;  Ryder  Baraclough,  2  Sra.  &  G.  231;  Rab}'  v. 

V.  r.ickcMton,  3  Swanst.   82;    Vande  Ridcbalgh,  7  Dc  G.  Mac.  &  G.  104. 

bend   V.  Livingston,    3   iSwanst.    62');  *  Montl'ord  v.  Cadogau,  17  V'es.  489; 

Monllord   v.   Cadogan,   19   Vcs.    640;  Munch  v.  C'ockerell,  5  My.  &  Cr.  178; 

Davic's    V.    riogdsun,    25    Beav.    187;  Reliden  v.  Wesley,  29  Beav.  213. 

Evroy   v.    iSicbohis,    2   Eq.    Ca.   Ab.  '"  Wallier  v.  Symonds,  3  Swanst.  1; 

488;  Stikeman  v.  Dawson,  1  l)e  G.  &,  Underwood   v.    Stevens,  1   ]Mei-.  712; 

Sm.  90;  Wrigbi  v.  Snowe,  2  De  G.  &  Burrows  v.    Walls,   5   De  G.  Mac.  & 

Sm   321.  G.  233. 

-•  Clive  v.  Carew,  1  J.  &  H.  199.  ^  Morse    v.    Royal,     12    Vcr.    335; 

3  Harden    v.   Par.sons,  1    Eden,  145;  Rocbe  v.  O'Brien,"  1  B.  &  B.  353;  Bue- 

Langforil   v.  Gascoync,  11    Ves.  333;  rum  v.  Scbenck,  41  N.  Y.  182;  Arthur 

Booth  V.  Booth,  1    i3eav.  125;    Broad-  v.  blaster.  1  Harp.  Ch.  47. 

hurst  V.  Bilgny,  1  Y.  &  C.  C.  C.  16;  ■>  Murray  v.  Palmer,  2   S.  &  L.  486; 

Kail  V.  Punter,  5  Sim.  555;  Walker  v.  Dunbar  v.  Tredenich,  2  B.  &  B.  317; 

Symonds,    3   Swanst.    (54;   Munch   v.  Maloney   v.  L'Estrange,  1  Beav.  413; 

Cockerell,  5  My.  &  Cr.  178;  Farrar  v.  Adams  v.  Bradley,  1  J.  &  W\  51. 

*  Mayer  v.  Bills,  16  Iowa,  586. 


Partners.  1227 

deed,  the  heirs  also  iriforniiiig  tlie  purchaser  that  the  executor  is 
the  authorized  agent  to  make  the  sale  ;  the  purchaser  has  a  right 
without  further  inquirj^  to  rely  upon  the  truth  of  such  assurances, 
and  the  heirs  are  estopped  from  disputing  them  or  thereafter 
asserting  title  to  the  land  conveyed,  upon  the  ground  of  want  of 
authority  in  the  executor.  And  where  the  purchaser  has  paid  the 
contract  price,  entered  into  possession,  and  made  valuable  improve- 
ments, with  the  knowledge  of  the  heirs,  he  can  maintain  an  action 
against  them  to  compel  them  to  execute  a  conveyance  to  him  so 
as  to  give  him  a  valid  title  of  record.' 

§  1096.  Estoppels  in  pais  operate  only  between  the  parties 
affected  by  them,  and  the  limitation  of  their  effect  applies  to  part- 
nership cases  as  well  as  others.     Where  a  person  is  charged  as  a 
member  of  a  partnership,  not  because  he  is  a  member,  but  because 
he  has  represented  himself  as  such,  the  law  proceeds  on  the  prin- 
ciple, that  if  a  person  so  conduct  himself  as  to  lead  another  to 
imagine  that  he  fills  a  particular  situation,  it  would  be  unjust  to 
enable  him  to  turn  round  and  say  that  he  did  not  fill  that  situa- 
tion.    If,  therefore,  he  appears  to  the  world,  or  specially,  to  the 
party  who  is  seeking  to  charge  him,  to  be   a   partner,  and   has 
represented  himself  as  such,  he  is  not  allowed  afterwards  to  say 
that   that   representation   was   incorrect,   and   that  he   was  not  a 
partner.*     Where  persons  hold  themselves  out  to  the  world  to  be 
partners  they  will  be  liable  to  third  persons,  and  they  are  estopped 
from  proving  that  any  other  relation  exists,  or  from  showing  what 
the  actual  relation  is.     A  person  who  holds  himself  out  as  a  part- 
ner,  inducing  others   to   believe   that   he  is  such,   and    thereby 
secures  credit  for  the  supposed  firm,  is  estopped  from  denying  his 
liability  as  a  partner  for  the  debts  inc^urred.''     But  holding  ones 

1  Favill  V.  Roberts,  50   N.  Y.    223.  Sliailor,  20  Conn,  18;  Dodd  v.  Bisliop 

''  Pace   V.    Barnett,  116   Mass.  €512;  30  La.  An.  1178;   Bennett  v.  Bean,  42 

Pott  V.  Eyton,    3   C.  B.    32;  Ness  v.  Mich.  346;  S.  C,  36  Am.  R.  442;  Ness 

Anges,  3  Excbq.  813;  Miles  v.  Fnrber,  v.    Anges,    3   Excbq.    813;   Sbafer  v. 

L.  R.  8  Q.  B.  77;  Sberod  v.  Laugdon,  Randolph,   09   Pa.    St.   250;    Kirk  v. 

21  Iowa,  518;  Dickenson  v.  Valp}',  10  llartman,  63  Pa.  St.   97;  Harrison  v. 

B.  &  C.  128;  Fox  V.  Clifton.   6  Bing.  lleatborn,  6   M.  «fc   Gr.  81;   Johnston 

779.  V.    Warden,    3   Watts,    101;  Wood  v. 

^Fibbard    v^.    Roderick,   51    Barb.  Argyle,    6  'M.  &    G.    932;   Kelton  v. 

616;  Bank  V.  West,  46  Me.  15;   Chase  Leonard,  54  Vt.  230;  Conkliu  v.  Bar- 

V.  Demming,  42  N.  H.  274;  Bank  v.  ton,  43  Barb.   435;  Rice    v.    Barrett, 


1228  The  Law  of  Estoppel. 

self  out  as  a  partner  does  not  make  him  so,  nor  render  him  liable 
as  such,  except  as  to  such  as  arc  lead  to  believe  him  to  be  a  part- 
ner and  who  give  credit  to  the  supposed  firm  on  that  belief.* 
Thus,  a  promissory  note  of  a  firm  was  signed  by  I>.  who  was  not 
a  meinl)er  of  the  firm,  but  who  represented  himself  to  plaintiff  to 
be  such.  He  had,  however,  authority  from  the  iirm  to  sign  the 
note,  but  not  to  represent  himself  as  a  member  of  the  firm.  B. 
was  liable  to  plaintiff  on  the  note  as  a  member  of  the  firm." 
The  same  principk'  applies  where  the  note  is  made  and  signed  in 
the  presence  of  the  party,  who  permits  his  name  to  be  used  as  a 
partner  without  objection.'  This  principle  extends  so  far  as  to 
bind  the  firm  for  the  frauds  of  one  partner,  committed  in  the 
course  of  the  firm  business,  though  the  other  partners  had  no 
knowledge  whatever  of  the  fraud  ;*  for,  by  forming  the  connec- 
tion of  partnership,  the  partners  declare  to  the  world  that  they 
are  satisfied  with  the  good  faith  and  integrity  of  each  other,  and 
impliedly  undertake  to  be  responsible  for  what  they  shall  each  do 
within  the  scope  of  the  partnership  concerns,  llence^  if  in  the 
business  of  the  partnership  money  be  received,  partly  by  one  of 
the  firm  and  partly  by  another,  to  be  laid  out  on  mortgage,  and  a 
mortgage  is  forged  by  one  partner  without  the  knowledge  of  the 
other,  the  innocent  partner  will  be  liable  for  the  whole  money. 
So,  if  false  lepi-esentations  of  certain  facts  are  fraudulently  made 
in  the  partnership  business  by  one  partner,  without  the  knowledge 
of  the   others,   the  firm   will   be   bound,   the  innocent  partners 


116  Mass.  312;  Rube  v.    Biomeil,  121  v.  Dcming,  42   ]S:.   H.    270;   Bryer  v. 
Mass.    4o0;    Kelly   v.   Scott,  49  N.  H.  Weston,    16    Me.    261;     Ilillmaii    v. 
595;    Guniey   v.    Evans,  3  H.   «fe   N.  Moore,  3  Teun.  Ch.  451. 
122;  Mollwo  v.  Court,  &c. ,  L.  R.  4  P.  '  Nichols  v.  .lames,  i:;0   Mass.  589; 
C.  419;  Jliies   v.    Finbcr,  L.  R.  8  Q.  Keltoii  v.  Leonard,  54  Vt.  230. 
B.  77;    Waugh    v.    Carver,    2    II.    Bl.  ^  Langdon    v.    Lit.clifield,  11    Conn. 
235;  Fox  V.  Clifton,  6  Bing.  776;  Mar-  251;  Cniger   v.    Doherty,    43    N.    Y. 
tyn  V.  Cray,  14   C.   B.   (N.    S.)    824;  407;   Newell  v.   Nixon,  4  Wall.   572; 
Thompson   v.    Bank,  111  U.    S.  529;  Hogg  v.  Skeen,  18  C.  B.  (N.  S.)  427. 
Woodward    v.    Clark,    30   Kans.    78;  "  Pierce  v.  Wood,    23    N.    H.    519; 
Hancock  v.  Hintragel  Co.,  60  Iowa,  Locke  v.  Slearnes,  1   Met.    560;   Blair 
374;  Fowler  v.   Stearns,  29  La.  Ann.  v.  Bromley,  5  Ha.   557;  Wickham  v. 
353.  Wickham',  2  K.  &   J.    478;   Lovell  v. 
'  Goode  v.  Harrison,  5  B.  &  A.  147;  Hicks,  2  Y.  &  C.  46;  Kelton  v.  Leon- 
Wood  v    Peauell,   51  Me.  52;   Chase  ard,  54  Vt.  230. 


Partners.  1229 

equally  with  the  guilty.'  This  principle  applies  to  an  acceptance 
by  a  partner  in  the  firm  name  in  fraud  of  the  partnership,  and  is 
binding  on  the  firm.* 

§  1097.  A  member  of  a  firm  who  omits  to  inform  its  cus- 
tomers of  a  dissolution  of  the  firm,  is  liable  on  the  contracts  of 
the  firm  made  after  his  retirement  until  the  proper  notice  is 
given.'  Where  one  partner,  after  the  dissolution  of  the  partner- 
ship, uses  the  firm  name  without  authority,  his  act  may  be  sub- 
sequentlj'  ratified  by  the  others,  and  the  contract  will  be  as 
binding  on  them  as  thougli  their  consent  had  been  previously 
given  for  that  purpose."  As  the  power  of  a  partner  to  bind  the 
firm  is  absolutely  ended  on  the  dissolution  of  the  firm,  it  cannot 
be  exercised  for  the  purpose  of  binding  his  co-partners  to  the 
payment  of  a  debt  from  wliich  they  have  been  discharged  by  the 
statute  of  limitations,  or  in  any  other  manner.'  No  party  can  be 
at  once  plaintiff  and  defendant ;  hence  a  firm  which  is  promisee 
of  a  note  is  estopped  from  bringing  an  action  against  a  firm  that 
are  promisors,  if  any  person  is  a  member  of  both  firms,  although 
no  partnership  may  exist  between  them.^  Yet,  where  two  per- 
sons are  joint  owners  of  a  vessel,  against  which  a  claim  exists  for 
non-delivery,  and  one  gives  a  note  in  the  joint  name  for  a 
bahmce  agreed  on  as  due  for  such  non-delivery,  the  other  party 
being  aware  of  the  making  of  the  note,  and  of  the  consideration 
for  wliicli  it  was  given,  and  making  no  dissent  from  the  act  of  his 
co-owner,  such  note  cannot  be  repudiated  by  such  other  party,  he 
liaving  bouglit  out  tlie  share  of  his  co-owner  in  the  vessel,  and 
agreed  to  pay  her  debts  and  liabilities.'  A.  and  B.  were  partners 
in  a  grist  mill,  to  which  was  permanently  attached  a  circular  saw 
mill,  in  which  C.  who  had  no  interest  in  the  real  estate,  held  an 
intei-est.  A.  and  B.  sold,  and  by  their  joint  deed  convej'cd  the 
entire  property,  including,  with  C.'s  assent,  the  saw  mill.     Held, 

'  Papp  V.  Latham,  2  B.  &   A.    795;  Richards  v.  Butler,  65  Qa.  593. 

Griswold   v.    Haven,    25  K    Y.    595;  •»  Easter  v.  Bank,  57  111.  215. 

Stroman  v.  Varn,  19  S.  C.   307;  Hay-  ^  Hayden  v.  Crutcher,  75   Ind.  108. 

ner  v.  Crow,  79  Mo.  293.  «  Moffatt  v.  Van  iVIilengen,  2  B.  &  P. 

•'  Hogg  V.  Skceu.  18  C.  B.   (N.  S.)  124:  Maiawariug  v.  Newman,  2  B.  & 

427.  P.  120;  Meal  v.  Turton,  4   Bing.  149; 

3  Freeman  v.  Cooke,  2  Exchq.  654;  Teague  v.  Hubbard,    8   B.  &   C.   345; 

Scarf  V.  Jardine,  L.   R.   7  App.    Cas.  Newell   v.  Nixon.  4  Wall.  573. 

349;  Richards  v.    Hunt,  65  Ga.  342;  '  Pence  v.  McPhersou,  30  Ind.   66. 


1230  The   Law  of  Estoppkl. 

in  a  suit  by  C.  against  A.,  the  surviving  partner,  to  recover  the 
vahie  of  the  saw  niill,  that  the  hitter  was  estopped  from  denying 
his  acquiescence  in  the  sale. 

§  1098.  A  partner  may  be  estopped  from  saying  that  there 
was  no  partnership.  Thus,  in  an  action  by  an  indorsee  against 
the  acceptor  of  a  bill  of  exchange,  purporting  to  be  drawn  by  a 
iirm  of  several  persons,  it  the  declaration  avers  that  certain  per- 
sons using  that  firm  drew  that  bill,  but  the  evidence  is  that  the 
drawer  of  the  bill  trades  singly  under  that  firm  name,  and  that 
he  has  no  partner,  this  is  not  a  variance  of  which  the  defendant 
can  take  advantage,  because,  by  accepting  the  bill,  he  is  estopped 
from  saying  that  it  was  improperly  drawn.*  So,  where  a  bill  is 
drawn  by  the  firm  upon  and  accepted  by  one  of  its  members,  in 
an  action  by  the  payee  against  the  drawers,  the  defendants  are 
estopped  from  setting  up  as  a  defense  any  irregularity  in  the 
drawing.  Under  such  circumstances,  proof  that  the  bill  was 
accepted  is  sufficient  evidence  of  its  having  been  regulai-ly 
drawn."  So  a  firm  was  held  estopped  by  its  conduct  from  deny- 
ing that  certain  property,  consigned  to  one  of  its  members  prior 
to  the  formation  of  the  firm,  had  come  into  its  possession  and 
was  held  by  it  as  factor,'  although  a  purchase  of  property,  made 
b}'  one  partner  upon  the  credit  of  the  firm,  was  originally  outside 
of  the  scope  of  the  firm  business,  3'et  if  the  other  partner  subse- 
quently claims  and  obtains  possession  of  it  from  the  partner 
making  the  pui'chase,  upon  the  ground  that  it  is  firm  property, 
he  ratifies  the  purchase  and  becomes  liable  for  the  price.  He 
can  not  take  the  benefit  and  deny  the  obligation."  So  the  recog- 
nition by  a  partner  of  a  chattel  mortgage,  executed  by  one 
partner  on  the  firm  property,  estops  him  from  denying  its 
validity.^  So  where  a  private  creditor  has  no  knowledge  that  the 
property  belongs  to  the  partnership,  and  the  partnershi]i  has 
intrusted  its  property  to  one  partner  in  such  a  manner  as  to 
enable  him  to  deal  with  it  as  his  own,  and  to  induce  the  public 
to  believe  it  to  be  his,  then  the  other  partners  fall  within  the 
rule  that  when  one  of  two  innocent  persons  must  suffer,  that  one 

»  Bass  V.  Clivc,  1  Camp.  78;   Wilde  ^  Coleman  v.  Peaice,  26  Minn.  133. 

V.  Keep,  6  C.  &  P.  335.  *  Porter  v.  Curry,  50  111.  319. 

«  Porthouse  V.  Parker.  1    Camp.  83;  Miichanlsoa  v.    Lester,  83  111.55; 

McStea  v.  Mathews,  3  Dal}',  349.  Maun  v.  Ins.  Co.,  40  Wis.  549. 


Married  Womeit.  1231 

must  suffer,  who,  by  his  acts  or  conduct,  afforded  the  means  of 
committing  the  fraud.  It  is  like  the  case  of  a  person  entrusted 
with  iroods  as  aorent,  who  sells  them  to  one  who  has  no  knowledo;e 
that  he  is  agent,  but  is  led  to  believe,  from  the  manner  in  which 
he  has  been  allowed  to  deal  with  the  goods,  that  they  are  his,  and 
M'ho  is  therefore  entitled  to  set-off  against  the  principal  a  debt  of 
the  agent.'  Where  partners  have  done  any  act  which  precludes 
each  and  all  of  them  from  asserting  their  lien  on  the  partnership 
effects,  or  where  from  any  cause  they  are  in  a  position  in  which 
they  cannot  assert  such  lien,  the  firm  creditors  are  equally  unable 
to  do  so.^ 

§  1099.  When  an  agreement  is  void  for  infancy  or  coverture, 
an  estoppel  founded  solely  upon  it  must  be  equally  void.^  The 
law  throws  its  protection  around  infants  andyeme  coverts,  and 
they  cannot  be  made  liable  to  contract  by  their  own  representa- 
tions.* A  void  contract  cannot  be  made  obligatory  by  a  false 
statement  of  the  fact  wiiich  awards  the  contract.  "  A  husband 
and  wife,"  said  Pollock,  C.  B.,"  "  are  liable  for  frauds  committed 
by  her  on  any  person  ;  as  for  any  other  personal  wrong.  But 
when  the  fraud  is  directly  connected  with  the  contract  of  the 
wife,  and  is  the  means  of  effecting  it,  and  parcel  of  the  same 
transaction,  the  wife  cannot  be  responsible,  and  the  husband  be 
sued  for  it  together  with  the  wife.  If  this  were  permitted,  the 
wife  would  lose  the  protection  which  tlie  law  gives  her  against 
contracts,  made  by  her  during  coverture  ;  for  there  is  not  a  con- 
tract a  fc-iiie  covert  could  make  whilst  she  knew  her  husband  to 
be  alive,  that  could  not  be  treated  as  a  fraud.  For  every  such 
contract  would  involve  her  in  a  fraudulent  representation  of  her 
capacity  to  sue."  A  minor  will  be  estopped  by  receiving  the  pro- 

'  Rabone  v.  Williams,   7  T.  K.   360;  65;  Coward  v.  Hughes,  1  K.  &  J.  443; 

George  v.  Clagett,  7   T.    R.   359;   Se-  Loan  Ass'a   v.    Fairburst,    9  .Excbq. 

nenza   v.    Brinsley.   18   C.  B.  (N.  S.)  422  ;   White  v.  Greenish,  11  C.  B.  (N. 

467;  Turner  v.  Thomas,  I..  H.  6  C.  P.  S.)  209;   Wright  v.   Leonard,  11  C.  B. 

610;  Dixon,  in  re,  4  Cli.  D.  133;  Kelly  (N.  S.)  258;  Coal  Co.  v.  Pasco,  79  111. 

V.    Munson,    7    Mass.   319;    Bank   v.  164;  Bartlett  v.  Wells,  31  L.  J.  Q.  B. 

Plimpton.    17    Pick.    159;    Steamship  57;  Johnson  v.  Pie,  1  Keb.  913;' Miller 

Co.  V.  Scudder,  2  Black,  372.  v.  Blankley,  38  L.  T.  (N.  S.)  527;  Can- 

*  Couchman  w.  Maupin,  78   Ky.  33.  nan  v.   Farmer,  3  Exchq.  698. 

3  James  v.  Landon,  Cro.  Eliz.  37.  *  Loan  Ass'n  v.  Fairhurst,  9  Exchq, 

«  Smith  V.  Marsack,  18  L.  J.  C.  P.  433. 


1232 


The  Law  of  Estoppel. 


ceeds  of  a  void  sale,  utilcss  he  repays  on  arriving  at  full  age.' 
And  the  same  estoppel  applies  when  the  fruits  of  a  void  convey- 
ance, made  by  a  hubbaiid,  of  land  belonging  to  his  wife,  arc 
received  and  enjoyed  by  her  after  his  death.*  In  the  application 
of  the  principles  of  equitable  estoppel  there  is  no  exception  in 
the  case  of  married  women. 

§  1100.  An  infant,  it  was  held,  for  the  same  reason,  as  in  the  case 
of  Q,feme  covert^  could  not  be  made  liable  for  a  fraudulent  affirm- 
ation, that  he  was  of  full  age,  whereby  the  plaintiff  was  induced 
to  conti'act  with  him.'  When  the  circumstances  are  such  that 
there  can  be  no  direct  responsibility  for  a  fraud,  there  can  be  no 
estoppel  indirectly.  But  where  infants  ixw^feme  coverts  cannot 
contract,  there  is  no  reason  why  they  should  be  allowed  to  injure 
others  with  impunity.*  An  estoppel  ma}'  arise  to  prevent  them 
from  ]iroliting  by  their  own  wrong  or  fraud. ^  It  has  been  held 
that  neither  infancy  nor  coverture  will  operate  as  an  excuse  for 
conduct  calculated  to  mislead  purchasers,*  and  that  a  married 
woman  M'ho  unites  with  her  husband  in  an  assignment  ot  her 
choses  in  action  cannot  subsequently  assert  her  equit}'  to  a  settle- 
ment against  the  assignee.'  A  feme  covert  was  held  to  have  lost 
her  right  to  enforce  her  equity  of  redemption  by  acquiescing  in 


"  Commonwealth  v.  Sluiman.  18 
Pa.  St.  343;  Penn  v.  Ilersey,  19  111. 
295;  Smith  v.  Warden.  19  Pa.  St. 
424. 

"  Tilton  V.  Nelson,  27  Barb.  595. 

3, Johnson  v.  Page,  1  Sid.  258;  1 
Keb.  913. 

*  FiUs  V.  lliill,  9  N.  H.  441 ;  Koseii- 
thal  V.  Mayhew,-33  Ohio  St.  155. 

*  Evans  v.  Bicknell,  6  Yes.  174; 
Drake  v.  Glover.  30  Ala.  382;  Fitts  v. 
Hall,  9  N.  H.  441 ;  Levi  v.  Earl,  30 
Ohio  St.  147;  Ford  v.  Ford,  4  Ala. 
142;  Dunn  v.  Cudney.  13  Mich.  239; 
Rosenthal  v.  Mayhew,  33  Ohio  St. 
155;  Vauiihn  v.  Vanderstegen,  2  Dr. 
362;  'Connolly  v.  Bninstler,  3  Busli, 
702;  Schwartz  v.  Saunder.s,  46  111. 
18;  Jones  v.  Kearney.  1  U.  &  W.  134; 
Wright  v.  Leonard,  11  C.  B.  (N.  S.) 
258;   Lush,    in  re,  L.   R.  4  Ch.  591: 


O'Brien  v.  Ililbourn,  9  To.\.  297;  Gal- 
ling V.  Roduian,  6  Ind.  281);  Brown  v. 
Coon,  3ti  111.  249;  Bigelow  v.  Foss,  59 
Me.  102;  Phillips  v.  Graves,  20  Ohio 
St.  3^0;  :Mount  v.  Morton,  20  Barb. 
123;  Bright  v.  Boyd,  1  Story,  478; 
Barhani  v.  Turbeville,  1  Swan.  437; 
Whittiugton  v.  Wright.  9  Ga.  23; 
Conch  V.  Sutton,  1  Grant  Cas.  114; 
Fulton  V.  Moore,  25  Pa.  St.  4(5S;  lUr- 
ingshead  v.  Alien,  17  i^i.  St.  275; 
Norton  v.  Nichols,  35  Mich.  148;  Reed 
v.  Hnll,57N.  H.  482;  Meilerv.  Butler, 
26  Ohio  St.  535;  Norris  v.  Wait,  2 
Rich.  148;  Wales  v.  Coffin,  13  Allen, 
216. 

^  Davis  V.  Tingle,  8  B.  Monroe, 
539. 

'  Wright  v.  Arnold,  14  B.  Mon. 
458. 


Married  Women.  1233 

the  improvement  of  the  mortgaged  premises  by  a  purchaser  from 
the  mortgagee ;'  while  a  union  of  a  wife  with  her  hupband  in  an 
application  uf  a  third  person  to  buy  a  mortgage,  gave  it  a  prefer- 
ence over  a  prior  mari-iage  settlement  in  her  favor.'^ 

§  1101.  The  doctrine  that  a  married  woman  could  not  do  by 
acts  in  jxds  what  she  could  not  do  by  deed,  has  been  materially 
changed  by  legislation  in  many  States  by  the  laws  known  as  the 
Married  Woman's  Acts,  and  in  all  those  States  where  there  has 
been  legislation  emancipating  her  from  the  narrow  common  law 
doctrines  by  which  all  the  various  transactions  of  married  women 
were  construed,  the  application  of  the  doctrine  of  estoppel  has 
received  the  liberal  construction,  that,  when  a  married  woman  is 
permitted  to  assume  the  privileges  oiixfeme  solssli^  assumes  those 
privileges  with  all  the  burdens  that  are  generally  attached  to 
those  in  a  similar  position  ;  as  one  of  the  necessary  consequences, 
courts  are  compelled  to  hold  that  the  same  prijiciplcs  of  law  are 
applicable  to  the  transactions  in  the  ordinary  course  of  business  in 
which  she  may  be  engaged  in  as  are  applicable  to  persons  that  are 
sici.  jut'is.  One  of  these  principles  is  that  when  a  married  woman 
engages  in  or  carries  on  a  separate  business,  and  habitually  issues 
bills  and  promissory  notes  in  tiie  ordinarj'  course  of  such  busi- 
iiess,  she  is  estopped  when  sued  by  a  Ijoiuifide  purchaser  of  a 
promissory  note,  which,  on  its  face,  purports  to  be  made  by  her 
in  the  ordinary  course  of  such  separate  business,  from  showing 
that  such  note  was  accommodation  paper.  The  principle  upon 
which  this  doctrine  is  founded,  is  this,  whenever  the  law  making 
power  invests  a  married  woma?i  with  certain  rights  and  privileges 
in  derogation  of  the  common  law  without  it  being  otherwise 
intended  in  the  law,  she  shall  be  held  in  the  exercise  of  those 
rights  and  privileges,  to  the  same  responsibilities  and  liabilities 
that  govern  tjie  man  or  unmarried  woman. 

"  A  married  woman  carrying  on  a  separate  business  or  trade,  is 
but  a  member  of  the  body  politic  or  social  organization,  entitled 
to  ever}"  right  that  men  have,  but  not  to  any  exemption  from  the 
effect  of  those  principles  of  law  and  equity  which  have  been 
established  by  the  courts  for  the  protection  of  property,  and   the 

»  Higgins  V.  Ferguson,  14  111.  269.  =  McCullough    v.    Wilson,    21   Pa. 

St.  476;  Bigelow  v.  Foss,  59  Me.  163. 
Vol.  I.— 78 


1234  The  Law  of  Estoppel. 

well-being  of  society.  She  need  not  carry  on  a  separate  business 
or  trade.  She  need  not  accept  the  position  and  privileges  given 
her  by  the  statute,  but  if  she  does,  and  goes  out  into  the  arena  of 
active  life,  seeking  for  its  advantages  and  power,  she  should  be 
governed  by,  and  held  to,  the  same  rules  of  action,  the  same 
liabilities,  and  bound  by  the  same  doctrines  of  established  law 
and  equity,  as  are  those  with  whom  she  mingles  in  the  business 
transactions  of  life.  She  can  only  be  their  peer,  and  not  their 
superior  ;  she  cannot  justly  be  clothed  in  an  armor  of  exemption 
and  special  privileges,  because  of  her  weakness  at  common  law, 
and  at  the  same  time  assert  her  right  to  all  the  privileges  of  man- 
hood in  her  business  transactions.  If  she  accepts  the  privileges 
of  the  statutes  and  the  position  the  law  gives  lier,  she  accepts 
them  cuta  onere,  bearing  the  same  burden,  and  subject  to  the 
same  liabilities  and  rules  of  law  and  equity  as  her  unmarried 
sister.  The  true  solution  of  the  question  is  to  be  found  in  the 
declared  position  given  her  by  statute  ;  she  may  hold  property, 
and  carry  on  any  trade  or  business  on  her  sole  and  separate 
account,  and  sue  and  be  sued  as  if  she  were  unmarried.  In  carry- 
ing on  her  business  she  is  to  be  considered  as  an  unmarried 
woman,  and  of  course  an  mimarried  woman  can  claim  no  exemp- 
tion, but  stands  on  an  entire  equalty  with  men.  Before  the 
enactment  of  this  class  of  legislation,  it  was  a  well  established 
principle,  that  married  women  and  infants  were  not  bound  by  the 
doctrine  of  estoppel,  except  in  rare  instances,  where  it  became 
necessary  to  prevent  fraud.  But  when  the  reason  of  the  rule  is 
done  away  with,  and  the  married  woman  is  placed  on  the  same 
plane  of  equality  with  the  man  or  unmarried  woman,  then  the 
rule  becomes  abrogated,  or  at  least  not  applicable  to  her  trans- 
actions in  carrying  on  her  separate  business.  If  in  entering  into 
engagements  she  purports  to  conti'act  not  for  her  husband  but 
for  herself,  and  on  the  credit  of  her  separate  estate,  and  it  was  so 
intended  by  her,  and  so  understood  by  the  person  with  whom  she 
is  contracting,  that  constitutes  an  obligation  for  which  the  person 
with  whom  ^he  contracts  has  the  right  to  make  her  separate  estate 
liable,  unless  in  so  doing  she  exceeds  the  limitation  if  any  there 
be,  u[)on  ihajus  dispwiendi.* 

'  Mrs.  Miitbewman's  Case.   L.  R.  3     2  Eq.   182;  Picard  v,  Hine,  L    R.  5 
Ey.  7«1;  Shattock  v.  Shattock,  L.  R.      Ch     App.   274;  Bank  v.  Lainpne,  L. 


Married  Women. 


1235 


§  1102.  In  respect  to  her  real  estate,  the  general  rule  is  that  a 
married  woman  can  only  divest  herself  of  title  in  the  manner 
pointed  out  by  statute.'  But  when  the  question  is  not  whether 
a  married  woman  shall  be  aided  in  the  assertion  of  an  equitable 
right  or  interest,  but  whether  her  legal  rights  shall  be  taken  awaj 
or  restrained,  equity  will  follow  the  law  and  refuse  to  hold  that 
the  disabilities,  which  it  imposes  for  wise  ends,  can  be  removed 
even  for  the  prevention  or  redress  of  fraud.  The  cases  where  a 
married  woman  may  be  estopped  by  standing  by  while  her  prop- 
.erty  is  sold,  without  warning  the  purchaser,  is  only  in  cases 
where  her  power  over  the  property  is  unfettered,  and  may  be 
exercised  without  the  assent  of  her  husband.^  The  law  protects 
the  wife,  but  gives  her  no  license  to  commit  a  fraud.  The  acts 
and  representations  of  the  wife,  in  respect  to  her  rights  of  prop- 
erty, made  to  deceive  others,  and  which  do  deceive  others  to 


R.  4  C.  P.  572;  Johnson  v.  Gallagher, 
3  De  G,  F.  &  J.  494;  Johnson  v.  Mc- 
Vail,  14  X.  J.  Eq.  423;  Huntley  v. 
Whitney,  77  N.  C.  392;  Butler  v. 
Cunipston,  L.  R.  7  Eq.  20;  Willard  v. 
Eastbam,  lo  Gray,  328;  Yale  v. 
Dederer,  18  JST.  Y.  265;  Manchester  v. 
Sahler,  47  Barb.  155;  Jc)hnson  v. 
Cummins,  16  N.  J.  E.  97;  Hutch- 
inson V.  Underwood,  27  Tex.  255; 
La  Touche  v.  La  Touche,  3  H.  «&  C. 
576;  Kelso  v.  Talior,  52  Barb.  125; 
Wells  V.  Thornian,  37  Conn.  318; 
Craft  V.  Roland.  37  Conn.  491;  Bogert 
V.  Guiick,  65  Barb.  322;  Lennox  v. 
Eldred.  65  Barb.  410;  Gosman  v. 
Cruger,  69  N.  Y.  87;  Yale  v.  Dedcrer, 
68  N.  Y.  329;  Bank  v.  Miller,  63  N.  Y. 
639;  Conklin  v.  Cattrell,  04  N.  Y.  217; 
Downing  v.  O'Brien,  67  Barb.  582; 
Williams  v.  Arniiston,  35  Ohio  St. 
296;  Hulmev.  Tenant,  1  Bro.  C.  C. 
16;  Bell  v.  Kellar,  13  B.  IMon.  389; 
Feltplace  v.  Gorges,  1  Ves.  Jr.  48; 
Cowles  V.  Morgan,  34  Ala.  535;  Mur- 
ray V.  Barlee,  3  M.  &  K.  210;  liurnett 
V.  Hawpe,  25  Gratt.  481;  Aylett  v. 
Ashton,  1  M.  &  C.  105;  Bank  v.  Tay- 
lor, 62  Mo.  338;  Owens  v.  Dickinson, 


Cr.  &  Ph.  48;  Deering  v.  Boyle,  8  Kas. 
523:  Dougherty  v.  Sprinkle.  88  N.  C. 
301;  McHenry  v.  Davies,  L.  R.  10  Eq, 
88;  Wicks  V.  Mitchell,  9  Kas.  80;  Pip 
pen  V.  Wessen,  74  N.  C.  437;  Hard}' 
V.  Van  Harlingen,  7  Ohio  St.  208  , 
Bank  v.  Gueuther,  13  App.  N.  Cas. 
428;  Dilzer  v.  Association,  103  Pa.  St. 
86  ;  Knowles  v.  Toone,  96  N.  Y.  534. 

'  Todd  V.  R.  R.,  19  Ohio  St.  514: 
Rice  V.  R.  R.,  320hio  St.  380;  Murdock 
V.  Lantz,  34  Ohio  St.  589;  Dukes  v. 
Spangler,  35  Ohio  St.  119. 

a  Spalding  v.  Drew,  55  Vt.  253; 
Duster  Co.  v.  Hibbard,  9  F.  R.  558. 
Slocuni  V.  R.  R.  Co.,  57  Iowa,  675. 
Connelly  v.  Branstler,  3  Bu.sh,  102; 
Couch  V.  Sutton,  1  Grant  Ca.s.  114; 
McCullough  V.  Wilson,  21  Pa.  St.  436; 
Brinkerhoff  v.  Brinkerhotf,  23  N.  J. 
E.  477;  Godfrey  v.  Thornton,  46  Wis 
677;  Fryer  v.  Risbell,  84  Pa.  St.  021; 
Carpenter  v.  Carpenter,  25  JST.  J.  E. 
194;  Levy  v.  Gray,  56  Miss.  318; 
Hockett  V.  Bailey,  86  111.  74;  Henry 
V.  Gauthreaux,  32  La.  Ann.  1103;  Pat- 
terson V.  Lawrence,  90  HI.  174;  Frank 
V.  Lillienfeldt,  33  Gratt.  377;  Mason 
V.  Jordon,  13  R.  I.  193. 


1236  The  Law  of  Estoppel. 

their  injury,  will  preclude  her  from  asserting  her  claim  against 
those  who  have  acted  on  her  representations  and  admissions.' 
Thus  a  married  woman,  living  with  her  husband  and  l^eeping 
house  together,  purchased  a  certain  amount  of  goods.  A.t  the 
time  the  purchase  was  made,  she  took  from  her  pocket  an  envel- 
ope, in  which  she  said  she  had  a.check  for  $100  which  belonged 
to  her,  out  of  which  she  said  she  would  pay  for  said  goods  upon 
deliveiy.  The  plaintiffs,  relyin*^  solely  upon  her  promise  and 
the  faith  of  said  check,  sold  said  goods,  and  charged  her  for  the 
same  upon  their  books  at  the  time  of  the  purchase.  The  carpet 
Avas  made  up  by  the  plaintiffs  according  ra  agreement,  and  the 
goods  delivered  to  the  defendant,  the  plaintiffs  sending  with  the 
goods  the  difference  in  cash  between  the  amount  of  their  bill  and 
said  check.  She  received  the  goods  but  refused  to  pay  for  them. 
She  was  estopped  to  deny  that  she  was  the  owner  of  the  SlOO 
(.'heck,  and  judgment  was  I'cndered  against  her  personally.  To 
estop  a  married  woman  from  claiuiing  real  property  there  must 
be  some  ])ositive  act  of  fraud,  or  something  dune,  upon  which  a 
person  dealing  with  her,  or  in  a  manner  affecting  her  right,  might 
rersoiuibly  rely,  and  upon  which  he  did  rely,  and  was  thereby 
injured." 

§  1103.  Contracts  and  agreements  of  married  women  in  refer- 
ence to  their  real  estate,  when  not  joined  by  their  husband, 
where  such  agreement  is  free  from  traud,  cannot  be  enforced  in' 
law  or  in  equity.  The  law  protects  the  weakness  of  women,  not 
tlieir  dishonesty.  Where  married  women  make  contracts  or 
agreements  affecting  their  real  estate,  by  fraudulent  means,  and 
thus  obtain  inequitable  advantages,  a  court  of  equity  will  hold 
them  estopped  from  setting  np  and  relying  on  their  coverture  to 
retain  the  advantage.  The  court  will  require  them  to  execute 
and  perform  the  contract,  if  executory,  or  prevent  them  from 
avoiding  it,  or  will  compel  them  to  place  the  other  party  in  istatu 
f/uo,   before  they  will    he   allowed   to  lescind  or   repudiate  such 

'Read  V.  Hall,  o7  N.  II.  472;  lldin-  Frank   v.    Liiieniield,   33   Gratt.  377; 

niondv.  Corbctt,  .ll  N.  H.  311;  iS'ixoQ  lleury  v.   Gautlireiiux,   33  La.   Ann. 

V.  Halky,  78  111.  611;   Allen  v.  Allen,  1103;  Godfrey  v.  Thornton,  46  Wis. 

118  .Mass.  402;   O'Brien  v.  llilburn,  9  677;    Bank  v   Hamilton,  34  X.  J.   E. 

Tfex.  201.  158. 

•  TowlLs   V.   Tisher,  77  N.  C.  437; 


Makried   Women.  1237 

asrreement  or  contract.'  Coverture  confers  no  privilege  or  license 
to  commit  either  fraud  or  falsehood,  under  sanction  of  an  oath, 
uor  protection  from  the  consequences.  If  a  married  woman  makes 
a  solemn  disclaimer  on  oath,  in  a  deposition  or  otherwise,  of  title 
to  property  which  is  legally  hers,  siie  is  estopped  from  thereafter 
claiming  it.'' 

§  1104:.  Equitable  estoppels  are  applicable  to  married  women.' 
Thus,  a  married  woman  standing,  by  and  seeing  costly  expendi- 
tures made,  or  is  silent  when  she  should  have  spoken,  or  makes  a 
representation  which  is  acted  on,  will  be  estopped  by  such  con- 
duct.* Thus,  a  woman  living  under  her  maiden  name,  apart  from 
her  husband,  under  a  void  decree  of  divorce,  and  acting  and  rep- 
resenting herself  as  a  single  woman,  binds  herself  by  her  acknowl- 
edgment of  a  deed  as  a  single  woman.*  So,  a  married  woman  is 
estopped  by  her  declarations  given  with  her  husband,  to  a  pur- 
chaser of  a  mortgage,  by  their  certificate,  that  there  is  no  legal  or 
equitable  defense  to  the  same."  So,  where  she  is  the  owner  of  a 
separate  estate,  and  executes  a  mortgage  thereon  to  secui'e  a  loan, 
and  makes  an  affidavit  that  the  money  is  to  be  used  for  the  pay- 
ment of  the  purchase  money  due  on  the  property,  she  is  estopped 
from  controverting  this  fact,  wdiere  she  undertakes  to  claim  it  as 

'  Piittcrson  V.  Lawrence,  90111.  174;  Conch  v.  Sutton,   1   Grant   Cas.    114; 

Henry  v.  Gautlireauz,  32  La.  An.  1103;  McCullough  v.  Wilson,  21  Pa.  St.  436; 

Holtz  V.  Bolden,  12  Phila.  498;  Smith  Brinkerhoff  v.  Brinkerhoff,  23  N.  J. 

V.    Munroe,  84  N.  Y.    354;  Savage  v. .  E.  477;  Sindall  v.  Jones,    57  Ga.    85; 

Foster,  9  Mod.    35;  Vanghu   v.    Van-  Carpenter  v.  Carpenter,   25   N.  J.  E. 

dcrsteven,    2    Drew,    363;    Sharp    v.  194;  Jones   v.    Kearney.  1  D.    &    W. 

Foy,  L.  R.  4  Ch.  591;  Bein  v.  HeatK,  134;  Wright  v.  Leonard,  8  Jur.  (N.  S.) 

6  How.    238;  Schwartz   v.  Saunders,  415;  Drake  v.    Glover,   30   Ala.    382; 

46  111.  18;  Mason  v.  Jordan,  13   R.  I.  Lush's  Trust,  in  le,  L.  R.  4  Ch.  App. 

193;  Coal  Co.    v.    Pasco,  79  111.    164:  591;  Miely  v.  Butler,  26  Ohio  St.  535: 

Anderson  v.  Armstead,  69  111.  452.  Dukes  v.  Spangler,  35  Ohio  St.  127. 

«  Cooley  V.  Steele,  2  Head,  605;  ^  Reis  v.  Lawrence,  63  Cal.  129;  S. 
Stephenson  v.  Walker,  8  Baxt.  289;  C,  46  Am.  R.  762;  Richeson  v.  Sim- 
Hamilton  V.  Zimmerman,  5  Sneed,  mons,  47  Mo.  20;  Rosenthal!  v.  May- 
38.  hugh,   33  Ohio   St.  155;  Patterson  v. 

'  Gatling  V.    Rodman,    6   Ind.  289;  Lawrence,  90111.  174. 
Peck  V.  Hensly,  21    Ind.  344;  Law  v.  "  Smith  v.  Munroe,   84   K.   Y.    354; 

Long,  41  Ind.  586;  Scranton  v.   Stew-  Holtz  v.  Beldin,  12  Phila.  498;  Howell 

art,  52  Ind.  68.  v.  Hale,  5  Lea,  405;  Irvine  v.  Hale, 

^Slocumb  V.  R.   R.,  57   Iowa,  675;  5  Lea,  405. 
Connolly  v.    Branstler,  3  Bush,   702; 


1238  Thk   Law  of  Estoppel. 

a  homestead.'  So,  wliere  lier  realty  has  been  improved  by  her  hus- 
band, she  acquiescing  therein,  she  may  be  regarded  as  unmarried, 
and  her  consent  be  implied  from  lier  knowledge,  in  the  absence 
of  objection.'  If  an  innocent  purchaser  from  a  lunatic,  without 
knowledge  of  his  insanity,  cannot  be  put  in  statu  quo^  the  con- 
veyance of  the  lunatic  should  not  be  set  aside  at  the  suit  of  the 
lunatic  or  his  personal  representatives.'  Thus,  where  a  wife  of 
a  lunatic,  knowing  his  insanity,  joined  with  him  in  conveying  her 
land  in  part  payment  of  property,  concealing  his  insanity  and 
acquiescing  in  the  purchase,  until  it  was  too  late  for  the  other 
party  to  be  put  in  statu  quo^  she  was  estopped  from  claiining  in 
her  own  right.  Coverture  will  not  be  invoked  and  used  as  a 
cloak  for  fraud."  So,  a  married  woman  may  elect  so  as  to  affect 
her  interest  in  real  property,  and  where  she  has  once  so  elected 
she  is  bound,  and  the  transaction  will  be  enforced  against  the 
heir.*  The  wife,  after  her  husband's  death,  may  ratify  the  act 
b^'  which,  during  his  life  time,  she  bound  herself  for  the  debt. 
Such  a  ratilication  retroacts,  and  renders  her  act  valid  from  its 
original  date.  Therefore,  creditors  who  have  since  become  such 
cannot  attack  the  validity  of  the  ratified  act." 

§  1105.  Under  various  statutes  removing  the  common  law 
disabilities  from  married  women,  coiresponding  liabilities  have 
necessarily  been  imposed  upon  them.  They  take  the  civil  rights 
and  privileges  conferred,  subject  to  all  the  incidental  and  correla- 
tive burdens  and  obligations,  ajid  their  rights  and  obligations  are 
to  be  determined  by  the  same  rules  of  law  and  evidence  by  which 
the  rights  and  obligations  of  the  other  sex  are  determined,  under 
like  circumstances.  To  the  extent,  and  in  the  matters  of  busi- 
ness in  which  they  are  by  law  permitted  to  engage,  they  owe  the 

'  Latbrop  v.  Ass'n,  45 Ga.  483;  God-  Rusk  v.  Fentou,  14  Bush,  490;  S.   C, 

frej'  V.  Thornton,  46  Wis.  677.  29  Am.  R.  413. 

••*  Ilustcd  V.  blathers,  77  N.    Y.  388;  ^  Ardesoife  v.  Bennett,  2  Dick.  463; 

Heck  V.  Fisher,  78   Ky.    643;  Auder-  Barrow  v.  Barrow,    4    K.    &   J.  409; 

son  V.  Mathers,  41  N.  Y.  262;  Dalton  Willoughby  v.  Middleton,  2   J.    &  H. 

V.  Tindolph,  87  Ind.  490.  344;  Sisson  v.    Giles,  11  W.  R.  558; 

3  Musselman  v.  Gavins,  47  Ind.  2.  Savill  v.  Savill,  2  Coll.  721;  Andersen 

•»  Davis  v.  Tingle,   8  B.   :Mou.    542;  v.  Abbott,  23  Beav.  457. 
Barby  V.  Brainbridge,  11  B.  3Iou.  115;  ^Latitte    v.    Delo^ny,   33    La.   An. 

Wright  V.  Arnold,  14   B.    Mon.   643;  659;  Ilibbard  v.   Bugbee,  55  Vt.  506; 

Connally  v.    Bransler,  3  Bush,  752;  S.  C.,  45  Am.  R.  637. 


Married  Women.  1239 

same  duty  to  those  witli  whom  they  deal,  and  to  the  public,  and 
may  be  bound  in  the  same  manner  as  if  they  were  unmarried. 
Their  conjmon  law  incapacity  cannot  serve  as  a  shield  to  protect 
them  from  the  consequences  of  their  acts,  when  they  have  statu- 
tory capacity  to  act.  A  married  woman  is  sui  juris  to  the  extent 
of  the  enlarged  capacity  to  act  conferred  by  statute,  and  may  be 
estopped  by  her  acts  and  declarations,  and  is  subject  to  all  the 
presumptions  which  the  law  indulges  against  others,  with  full 
capacity  to  act  for  themselves.  Where  there  is  no  legal  capacity 
to  contract,  a  party  will  not  be  estopped  by  falsely  representing 
that  he  has  capacity ;  that  is,  the  incapacity  is  not  removed  by 
any  fraudulent  representation  of  the  actor.  The  law  will  not 
permit  one  legally  incapacitated  to  do  that  indirectly  which  he  or 
she  cannot  do  directly.  That  is  especially  the  case  in  respect  to 
infants  and  married  woman  laboring  under  the  common-law 
disabilities,  the  law  imposing  the  disqualification  from  motives  of 
public  policy,  and  for  the  safety  of  those  regarded  as  weak,  and 
needing  this  protection.  But  the  reason  of  the  rule,  ceasing  with 
the  removal  of  the  incapacity,  the  rule  falls  in  the  management 
and  control  of  her  separate  property,  when  acting  by  agents.  A 
feme  covert  is  answerable  for  the  frauds  of  her  agent,  while  acting 
within  the  scope  of  the  agency,  although  the  fraud  may  be  with- 
out her  knowledge  or  assent.  Where  by  statute  a  married 
woman  may  carry  on  any  trade  or  business  on  her  sole  and  sepa- 
rate account,  and  the  earnings  from  her  trade  or  business  are  her 
sole  and  separate  property,  and  she  may  sue  and  be  sued  in  all 
matters  having  relation  to  her  sole  and  separate  property,  in  the 
same  manner  as  if  she  were  sole,  she  has  all  the  legal  capacity 
to  do  every  act  incident  to  the  business  or  trade  in  which  she 
may  engage,  which  a  feme  sole  w'ould  have,  that  is,  full  legal 
capacity  to  transact  the  business,  including,  as  incidents  to  it,  the 
capacity  to  contract  debts  and  incur  obligations  in  any  form,  and 
by  any  means,  by  which  others  acting  sioi  juris  can  assume 
responsibilit3^'     Thus,  in  a   late   case,    the   court   said :    Under 

•  Bodine  v.  Killeen,  53  N.  Y.  93;  Mullen,  47  N.  Y.  577;  Lyman  v.  Cess- 
Sherman  V.  Elder,  24  N.  Y.381;  Keen  ford.  15  Iowa,  239;  Grove  v.  Jeager, 
V.  Coleman,  30  Pa.  St.  299;  Lowell  v.  60  111.  249;  Schwartz  v.  Saunders,  46 
Daniels,  2  Gray,  161;  Goulding  v.  111.  18;  NetterviUe  v.  Barber,  52  Miss. 
Davidson,   26    N.  Y.    604;  Baum  v.  168;  Newman  v.  Morris.  52  Miss.  402; 


]240  The  Lawt  of  Estoppel. 

the  statute  the  wife  is  clothed  with  the  same  property  rights,  and 
clKir'j-ed  with  tlie  same  liabilities  as  the  husl)aiid.  Indeed,  it  can 
not  be  said  that,  as  to  her  propert)%  she  is  deprived  of  any  rights 
which  her  husband  enjoys  that  relate  to  his,  or  that  any  remedy 
is  denied  her,  or  any  lial)ility  removed  from  her  which  arc  pos- 
sessed by  or  imposed  upon  the  husband.  She  can  control  her 
own  property,  vindicate  her  own  individual  rights,  and  bind  her- 
self by  contract  as  fully  and  to  the  same  extent  as  her  husband. 
When  the  law  will  imply  a  contract  binding  the  husband,  under 
the  same  circumstances  it  will  one  against  the  wife.  In  short, 
the  statute  bestowing  upon  her  equal  property  rights  with  the 
husband  imposes  upon  her  the  same  obligations  he  has,  and  the 
wife  may  ratify  a  defective  and  void  conveyance  of  the  home- 
stead in  all  cases  where  the  husband  could  ratify  such  an  act. 
Where  the  husband  or  wife  executes  a  deed  for  the  homestead 
which,  by  reason  of  defects  of  form,  is  void,  the  same  may  be 
ratified  by  the  assent,  contract  or  conduct  of  the  wife,  the  same 
as  by  the  husband.  There  is  nothing  in  the  character  of  the 
property  which  deprives  the  parties  of  the  right  to  ratify  their 
void  deed  therefor.  Where  the  husband  and  wife  executed  a 
deed  for  the  homestead,  which  was  v(»iil  by  reason  of  defects  in 
its  form,  lldd,  that  where  the  wife  liad  full  knowledge  of  her 
rights,  but  voluntarily  surrendered  her  ])ioperty,  made  no  objec- 
tion to  the  grantee's  title  when  he  offered  to  sell  it,  and  permitted 
him  to  quietly  hold  possession  for  more  than  three  years,  and 
during  that  time  to  make  iujprovenients  thereon  and  dissharge 
incumbi'aiices  upon  it,  such  acts  will  auiount  to  a  ratitication  of 
the  deed  by  the  wife,  and  estop  her  from  claiming  title  to  the 
property  thereafter.'  On  the  sauje  ]>riiieiple,  one  cannot  take 
advantage  of  certain  statutory  piovisions  without  incurring 
thereby  the  attendant  liabilities.  This  applies  to  a  married 
wunian  becoming  a  shareholder  in  a  national  bank." 

§  HOC.  There  is  nothing  in  the  marital  relations  which 
prevents  a  wife  from  eniploying  an  jigent  in  the  management  of 
her  property  and  estate.     And   it  is  well   settled  that  a  husband 

Davis  V.  Bank,  5  Neb.  24'<J;  Williums  ■'  Matbewnian's   Case,    L.  R  3  E(j. 

V.    Ilugeniu.  GiJ   11)      214;    Cohen   v.  Cas.    781;   Bauk,  in  re,  22  N.  Y.    5>  ; 

O'Cotinnr.  .5  Daly,  2S.  Bank  v.  Case,  99  C.  S.  028;  Hobart  v. 

'  Spairord  V    Warren,  47   Iowa,  47.  Jobiison,  8  Fed.  Rep.  49;J. 


Married   Womeist.  1241 

may  be  his  wife's  agent.'  A  wife  may  by  allowing  her  husband 
to  deal  with  her  property  as  owner,  make  him  her  agent  in 
respect  thereto,  and  is  bonnd  by  his  acts  to  the  same  extent  as 
other  principals  are  by  the  acts  of  their  agents.^  Where  the  wife 
fraudulently  permitted  her  husband  to  represent  himself  as  the 
owner  of  her  separate  property,  and  procure  mechanics  to  make 
valuable  improvements  thereon,  without  disclosing  her  ownership 
or  repudiating  his  authoritj^  she  is  estopped,  afterwards,  from 
denying  his  authority  to  cause  the  improvements  to  be  made,  when 
the  mechanics  seek  to  enforce  liens  for  payment  of  the  amount 
due  them  for  work  done  under  the  faith  of  the  husband's 
authority/ 

A  married  woman  was  not  estopped  by  a  deed  fraudulently 
antedated  to  deceive  a  purchaser  with  the  belief  that  she  was  sole, 
where  she  sets  up  coverture  as  a  defense.  While  an  equitable 
estoppel  may  be  as  effectual  as  a  deed,  it  cannot  be  binding  whei'C 
a  deed  will  be  void."  When  a  tort  is  so  involved  with  a  void 
contract,  and  would  not  have  occurred  if  the  contract  had  been 
performed,  and  the  wrong  consists  in  the  breach  of  the  contract, 
the  defect  is  vital  and  cannot  be  obviated  by  a  change  in  the 
form  of  action.  This  is  the  well  settled  law  of  England  and 
Penns^dvania.'  A  married  woman  will  not  be  estopped  by  a 
failure  to  expose  facts  of  fraud  or  misconduct  on  the  part  of  her 
hu'sband,  in  which  she  does  not  share,  or  even  to  point  out  that 
property  which  he  is  disposing  of  as  his  own  belongs  to  her,  for 


'  Wells  V  Smith,  54  Ga.  262 ;  Keller  »  Walker  v.  Walker,  17  S.  C.  329; 

V.  Mayer,  55  Ga,  406;  Eystra  v.  Oapell,  Spaulding  v.  Drew,  55  Vt.  255;  Walker 

61  ]Mo.  578;  Paine  v.  Farr,  118  Mass.  v.  Carringtou,  74   111.  446:   Early   v. 

721;   Cooper   v.    Hann,   49   Ind.  393;  Rolfe,  95  Pa.  St.  60;  Pierce  v.  Whaling, 

Iceland    v.    Collver,    34    Mich.    418;  7   Biss.    426;   Moreland   v.  Myall,  14 

Jordan  v.  Anderson,  29  La.  Ann.  749;  Bush,  474;  Bowen  v.  Amsden,  47  Vt 

Cohen  V.  O'Clonnor,  5  Daly,  28;  Sher-  569;  Sawyer  v.   Perry,  62  Iowa,  238; 

man  v.  Elder,  21   N.  Y.  381 ;   Knapp  Camden  v.  Hiteshew,  23  W.  Va.  286. 

V.  Smith,  27  N.  Y.  277,  Buckley  v.  »  Coal  Co.    v.   Pasco,    79  111.    164; 

Wells,  33  N.  Y.  518;  Gage  v.  Dandry,  Schwartz    v.    Saunders,    46    111.    18; 

34  N.  Y.  293;  Kluendcr  v.  Lynch,  4  Anderson  v.  Armstead,  69  111.  452. 

Keyes,  869;  Rush  v.   Voughi,  55  Pa.  *  Lowell  v.    Daniels,   2   Gray,  161; 

St.  437;  Musser  v.  Gardner,  66  Pa.  St.  Keen  v.  Coleman,  39  Pa.  St.  299. 

242;  Mclntyre  v.  Knowlton,  6  Allen,  *  Keen  v.  Hartman,  48  Pa.  St.  497. 
565;  Lewis  v.  Johns,  24  Cal.  98. 


1242  The  Law  of  Estoppel. 

the  reason  that  the  law  will  presume  that  she  was  swayed  hj  his 
influence  or  restrained  by  fear  of  giving  him  oflfense.' 

§  1107.  Due  regard  should  be  had  to  the  age  of  a  minor  in 
deciding  upon  his  responsibility  for  wl)at  he  has  said  or  done,  and 
he  ought  not  to  be  estopped  from  asserting  his  riglits,  unles8 
there  is  sufficient  ground  for  believing  he  knew  of  their  existence, 
and  was  aware  of  the  injurious  effect  which  his  conduct  might 
have  upon  others."  It  has  been  an  almost  universal  rule  that 
estoppels  do  not  apply  to  infants'  ixudyemes  (Covert* 

Equitable  estoppels  are  applicable  to  married  women,  and  in 
some  instances  to  infants.  Thus,  if  a  contract  for  the  erection  of 
a  building  is  made  by  the  husband,  and  the  same  is  erected  on  the 
real  estate  belonging  to  the  M'ife  in  her  separate  right,  with  her 
full  knowledge,  approbation  and  consent,  and  she  does  not  disclose 
lier  interest,  and,  knowing  that  it  is  being  done,  takes  no  steps  to 
prevent  it,  she  will  be  estopped  from  setting  up  her  riglits  as  a 
defense  to  a  mechanics'  licn.^ 

A  petition  to  enforce  a  mechanic's  lien,  on  land  belonging  to 
a  woman,  for  materials  furnis^hed  to  her  husband,  of  which  she 
was  aware,  must  allege  facts  to  bind  her  by  way  of  estoppel,  or 
by  the  agency  of  her  husband.^  Mere  averments  that  a  building 
was  erected  ''  with  the  full  knowledge,  consent,  and  approbation," 
of  the  wife,   and  progressed  "  under  her  daily   view  and  inspec- 

»  Bank  v.  Lee,  13  Pet.  107;   Drake  184;  Ackley  v.  Dygert,  83  Barb.  17G. 

V.    Glover,    30  Ala.    382  ;   Palmer   v.  *  Morrison  v.    (Vilson,  13  Cal.  45)1; 

Goss,  1  S.  &   M.  Ch.  48;   McClure  v.  Lowell  v.  Daniels,  2  Giay,  161;  Kceue 

Doulhitt,    6   Pa.  St.  414;    Gatlin-   v.  v.  Coleman,  39  Pa.  St.  209;    Bank  v. 

Rodman,  G  lud.  2S9.  Bellis,     10     Ctish.     270;     Gliden     v. 

^  Drake    v.    Glover,    30    Ala.    382;  Struppler,  52  Pa.  St.  400;   Jian-ely  v. 

Wilks   V.  Fitzpatriek,  1   Humph.  .'54;  Spring,  21  JMe.  lOO. 

Upshaw    V.    Gibson,    53    Mi.ss.    341;  *  Swartz    v.    Saunders,    46    111.    18, 

Rogers  v.  Broolis,  30  Ark.  612;  Moore  Higgins    v.    Ferguson,    11    111.    269; 

V.  Foote,  34  Mich.  443;   Carpenter  v.  Donaldson    v.     Holmes,    23    111.    85; 

Carpenter,  27  N.  J.  E.  502.  Couch  v.  Sutton,  1   Grant    Cas.    114; 

*  Lackman   v.   Wood,  25   Cal.  153;  Galling  v.  Rodman,  6  Ind.  289;   Law 

Todd  V.  Kerr,  42  Barb.  465;  Brown  v.  v.    Long,    41    ind.    586;    Scraiitun    v. 

McCuue,    5   Sand.   224;     Williams    v.  Stewart,  52  ind.  08;  Pock  v.  Hensley, 

Baker,  71   Pa.  St.  482;    Wilkinson    v.  21  Ind.  344;  Wheeler  v.  Hall,  41  Wis. 

Filby,  24  Wis.  441;  JSorris  v.  Wait,  2  147,   Anderson    v.  Armistead,  6'.J    111. 

Rich.  148;  Bartlett  v.  Wells,   1  B.   Oc  452. 

S.  836;    Merriam  v.  Cunningham,  11  •*  Wilson  v.  Schuck,  5  111.  App.  572, 
Cusli.  40;  Buriey  v.  Pu«sell,  10  N.  H. 


Maiiried  Women".  1243 

tion,"  and   that  she  is  living  with  her  husband  in  such  building, 
claiming  it  as  a  homestead,  show  no  liability  on  her  part." 

§  llOS.  Where  a  married  woman  whose  husband  had  deserted 
her,  sold  and  conveyed  a  tract  of  land  and  received  full  considera- 
tion therefor,  subsequently  she  attempted  to  avoid  the  conveyance 
on  the  ground  of  coverture.  The  court  say :  "  In  making  this 
deed  Mrs.  M.  acted,  as  well  she  might,  as  a  feiiw  sole,  and,  in 
order  to  make  the  sale,  represented  herself  as  such.  So  far  as 
appears,  she  received  an  adequate  consideration  for  the  sale.  The 
contract  was  fully  executed  on  both  sides,  as  she  then  supposed. 
She  does  not  offer  to  rescind,  by  tendering  back  the  consideration  ; 
but  retains  the  fruit  of  her  contract,  while  treating  it  as  a  nullity. 
In  the  meantime,  her  grantee,  acting,  as  we  may  presume,  on  the 
faith  of  representation  and  covenants,  had  improved  the  property, 
and  conveyed  it  to  a  bona  fide  purchaser  for  value — the  present 
plaintiff  in  error.  If  this  were  an  executory  contract  to  convey, 
and  the  purchaser  sought  to  enforce  a  convej'ance  upon  payment 
of  the  consideration,  equity  might  refuse  to  do  so  ;  but  where  she 
has  received  the  consideration,  and  executed  the  contract,  as  far 
as  she  had  capacity  to  do  so,  a  court  of  equity  will  not  aid  her  to 
repudiate  it."  "  Where  a  wife,  who  was  living  with  her  husband, 
induced  a  buyer  to  purchase  lands  owned  in  her  own  riglit,  by 
verbally  agreeing  that  a  debt  due  from  her  husband  to  the  pur- 
chaser, should  be  taken  in  part  paj^nent,  it  was  held  that,  after 
such  purchase,  a  conveyance  by  her,  she  could  not  repudiate  this 
contract  as  to  her  husband's  debt  and  collect  the  entire  purchase 
money.  As  against  the  purchaser  from  her,  she  was  estopped 
by  her  verbal  agreement,  although  under  the  disabilities  of 
coverture."*  While  a  married  woman's  covenants  in  a  deed  in 
which  she  joins  with  her  husband  are  invalid,  and  can  not  be 
made  the  foundation  of  an  action  against  her  for  a  breach,  yet, 
as  in  the  case  of  an  expectant  lieir,  they  operate  by  way  of  estop- 
pel on  her  after  acquired  title.^    If  such  is  the  effect  of  covenants 

'  Lauer  v.    Baudon,    43   Wis.    556;  v.  ■Sliearer,  7    Mass.  21;    Colcord    v. 

Ferguson  V.  Spear,  65  Me.  377.  Swann,     7     Mass.     291;     ^lassie    v. 

2  Meiley  v.  Butler,  26  Ohio  S.  535;  Sebastian,  4  Bibb,  436;  Nash  v.  Spof- 
Bullock  V.  Gritfin,  1  Strobh.  Eq.  60;  ford,  10  Met.  294;  Nelson  v.  Ilarwood, 
Usher  v.  Richardson,  29  Me.  415.  3  Call.  342;  Wadleigh  v.  Glines,  6  N, 

3  Hilly.  West,  8  Ohio,  222;  Fowler  H.  18;   Knight  v.  Thayer,  125  Mass. 


1244  The  Law  of  Estoppel, 

in  a  (Iced  pro])er]j  execnted  by  a  married  woman,  acting  under  all 
the  disabilities  of  coverture,  a  fortiori,  it  -would  seem  she  could 
be  estopped  by  such  covenants  where  no  sucli  disabilities,  in  fact, 
existed.  And  if  the  covenants  of  an  heir  apparent  estop  him, 
though  his  deed  is  void  as  a  conveyance,  because  he  has  no  vested 
interest,  why  should  it  not  estop  her,  who  has  an  inchoate  right 
of  dower.'  "  And  by  bringing  suit  to  recover  the  purchase 
money  for  a  tract  of  land  conveyed  by  a  deed  defectively  exe- 
cuted, a  married  woman  affirms  the  conveyance  and  is  barred 
from  claiming  any  interest  in  the  land."  *  "  It  is  well  settled  that 
a  widow  may  bar  her  dower  before  its  assignment,  by  way  of 
estoppel,  although  she  could  not  convey  it  or  release  it,  except  to 
the  owner  of  the  fee.  Her  acts  and  contracts,  in  that  behalf,  are 
subject  to  the  same  equitable  rules  as  those  of  an}^  other y^me'  soUy 
and  a  court  of  equity,  by  applying  the  doctrine  of  estoppel,  will 
not  allow  her  to  commit  a  fraud."  The  court  then  said  :  "  We 
conclude  that,  under  the  facts  of  this  case,  the  disabilities  of 
coverture  were  in  fact  removed,  so  far  as  to  make  her  capable  of 
contracting,  and  suing  and  being  sued.  At  least,  a  court  of  equity 
would  regard  her  ^^  ^  feme  sole,  and  wliile  the  I'igid  and  liarsli 
rules  of  the  common  law,  as  it  once  existed  in  this  State,  regarded 
the  wife,  who  was  living  and  cohabiting  with  her  husband,  as 
under,  or  protected  by  these  disabilities  ;  yet,  where  sucli  relation 
has,  in  fact,  ceased  for  eight  years,  she  is  empowered  and  justified 
in  acting  as  a  f erne  sole.  Having  so  acted,  in' making  this  convey- 
ance, and  in  receiving  the  consideration  it  ^would  be  grossly 
inequitable  to  allow  her  to  repudiate  her  contract  after  liaving 
enjoyed  its  fruits."  "  A  widow,  before  dower  is  assigned,  having 
only  a  vested  right  to  be  endowed,  can  not,  at  law,  convey  such 
right, — she  can  only  release  it.  Yet,  being  a  feme  sole,  she  can 
effectually  bar  such  right,  by  way  of  estoppel.  Being  ixfenie  sole, 
equity  will  treat  her  as  such,  and  enforce  her  contracts  in  relation 
to  her  nnassigncd  dower,  when  she  has  estopped  herself  by  her 
acts  or  contracts.  Mrs.  M.,  being  empowered  to  act  as  ^feme  sole 
by  the  long  absence  beyond  the  state,  and  desertion  of  her  lius- 
band,  could  as  fully  bind  herself  as  a  M'idow,  i.  e.,  she  was  as  fully 

25  ;  Dukes  v.  Spangler,  35  Ohio  St.  >  Rosenthal   v.   Mayhugh,   33   Ohio 

127.  S.  loo. 

"  Share  v.  Anderson,  7  S.  &  R.  42 


Markied  Women.  1245 

relieved  from  the  disabilities  of  coverture,  as  if  her  husband  had 
been  actually  dead.  She  was  entitled,  on  that  proof  to  have  dower 
assigned  as  if  she  were  a  widow  in  fact.  As  a  widow  might  do, 
she  joined  with  the  heirs  in  the  deed  to  R.  and  covenanted  the 
title.  Had  she  been  under  all  the  disabilities  of  coverture,  and 
joined  with  her  husband  in  such  covenants,  she  would  have  been 
estopped  from  asserting  an  after  acquired  title.  If,  then,  a  widow, 
or  a  feme  covert,  in  fact,  by  uniting  with  her  husband,  can  bar 
lier  future  rigiit  to  have  dower  assigned,  or  estopped  herself  from 
asserting  an  after  acquired  title,  we  are  unable  to  see  why  a  mar- 
ried woman,  under  the  circumstances  of  this  case,  who  has  all  the 
powers  of  Sifeme  sole,  can  not  do  so.  Treating  Mrs.  M.  as  wfeme 
sole,  as  to  her  capacity  to  contract,  there  is  nothing  in  the  nature 
of  her  interests  in  the  property  to  prevent  her  from  binding  her- 
self by  her  representations  and  covenants  so  far  as  to  estop  her  in 
equity  from  repudiating  a  contract  fully  executed  in  good  faith 
by  her  grantee,  and  as  she  supposed  and  intended  at  the  time  fully 
executed  on  her  part.  Equity  recognizes  the  separate  existence 
of  the  wife,  even  under  all  the  disabilities  of  coverture,  and 
regards  her  as  a  rational  and  responsible  subject  of  its  jurisdiction, 
erttitled  to  its  protection,  aiid  amenable  to  the  decrees  of  a  court 
of  conscience.'  It  is  said,  there  was  no  fraud  in  Mrs.  M.'s  repre- 
sentations that  her  husband  was  dead,  because  it  does  not  appear, 
she  knew  it  was  false.  This  was  not  necessary.  It  is  not  neces- 
sary, t(^  an  equitable  estoppel,  that  the  party  should  design 
to  mislead  another  acting  in  good  faith  and  with  reasonable 
diligence."" 

§  1109.  A  married. .woman  is  capable  of  committing  a  fraud, 
and  is  liable  to  be  visited  with  the  consequences  of  the  commis- 
sion of  it.^  In  an  English  case,  which  has  been  cited  as  estab- 
lishing this   principle,  it   appeared   that   a   married   woman   was 

1  Phillips  V.  Graves,  20  Ohio  S.  380;  ^  Morgan  v.  Spangler.  14   Ohio   S. 

Levi  V.  Earl,  ^0  Oliio   S.  147;   Mount  102;  Jordan  v.  Money,  5  H.  L.  C.  212; 

V.    Morton,    20    Barb.  123;    Ford    v.  Howard   v.    Hudson,   2  E.   &   B.  13; 

Ford,  4  Ala.  142;   Fitz   v.  Hall.  9   N.  Blair   v.  Wait,  69   N.  Y.  113;    Kosen- 

H.  41;  Evans  v.  Bucknell,  6  Ves.  174;  thai  v.  Mayhugh,  33  Ohio  S.  155. 

Wright   V.   Arnold,   14   B.  Mon.  638;  ^  y^ugiian  v.  Vanderstegcn,  2  Drew, 

Dunn  V.  Cudney,  13  Mich.  239;   Her-  363;   Sharp  v.  Toy,  Law  R.  4  Ch.  35. 
man  on  Estoppel,  §  494. 


1246  The  La\v  of  Estoppel. 

eiiritlcd  to  an  estate  in  fee  simple,  expectant  on  tlie  deatli  of  her 
mother,  ller  lialf-sister  was  about  to  be  married  ;  the  married 
woman  entitled  to  this  remainder  or  reversion  was  anxious  to 
uromote  that  marriage,  and  in  order  to  bring  it  abont,  induced 
her  mother  to  represent  herself  as  owner  in  fee  of  the  estate, 
though  slie  was  only  tenant  for  life,  the  married  woman  entitled 
in  remainder  suppressing  and  concealing  the  fact  of  her  own 
title.  The  marriage  was  accordingly  effected  by  the  mother  con- 
voying the  estate,  as  if  she  were  the  owner  in  fee,  to  the 
intended  husband.  Afterwards  the  married  woman,  who  had 
thus  induced  her  mother  to  execute  this  conveyance,  became  a 
widow  ;  and,  on  a  bill  tiled  by  the  husband  of  the  sister,  she  was 
compelled  by  the  court  tu  convey  the  estate. 

A  married  woman's  estate  may  become  bound  by  the  partici- 
pation in  fraud  ;  as  where  a  mortgage  is  obtained  upon  property 
of  t\\Qfemey  upon  the  false  representation  made  by  her  that  she 
owned  the  absolute  interest  in  the  estate.  Such  a  representation 
will  give  the  mortgagee  precedence  over  a  prior  man-iage  settle- 
ment of  the  same  estate,  of  which  the  mortgagee  had  no  notice 
at  the  time  ;  and  this,  too,  though  there  was  a  defect  in  the 
feme's  execution  of  the  mortgage,  which  was  not  remedied  until 
after  the  mortgagee  had  received  notice  of  the  settlement.' 
If  a  married  woman,  free  from  all  constraint,  and  with  a  full 
knowledge  of  her  rights,  should  represent  that  a  certain  tract  of 
land  was  not  her  homestead,  and  then  cause  a  person  to  purchase 
it,  she  would  be  concluded  by  her  acts ;  but  if  the  party  purchas- 
ing should  know  all  the  facts,  or  by  reasonable  diligence  could 
know,  and  it  should  be  apparent  that  the  mari'ied  woman  was  not 
entirely  free  from  restraint,  or  was  not  o<*gnizant  of  her  rights, 
whatever  admissions  might  be  made  under  these  or  similar  cir- 
cumstances could  not,  with  any  propriety,  be  said  to  intluence  the 
purchaser,  or  to  estop  the  married  woman  from  asserting  her 
rights.  These  admissions,  whether  of  law  or  of  fact,  which  have 
been  acted  on  by  others,  and  which  were  calculated  to  influence  a 
prudent  man,  and  which  were  the  cause  of  another's  actions,  and 
which  were  deliberately  and  knowingly  made,  are  conclusive 
against  the  party  making  them,  in  all  cases  between  him  and  her, 
and  the  person  whose  conduct  was  thus  influenced.*''  Thus,  a  party 

•  Shurp  V.  Foy,  L:iw  II.  4  Ch.  35.  «  Welch  v.  Rice,  31  Tex.  088. 


Married  Women.  1247 

having  bought  and  received  a  conveyance  from  ^feme  covert  ut" 
a  tract  of  land  for  a  full  consideration,  believing  that  she  had  the 
power  to  conve}',  made  improvements  in  good  faith  upon  the 
land,  althongh  the  conveyance  to  him  cannot  be  sustained,  jet, 
inasmuch  as  she  actively  participated  in  the  sale  and  conveyance, 
appellant  is  entitled  to  be  reimbursed  for  his  improvements.' 
So,  if  a  married  woman  induces  a  party  to  purchase  an  estate  to 
which  she  has  an  adverse  title,  she,  knowing  at  the  time  of  such 
title  and  fraudulently  concealing  it,  she  will  be  estopped  from 
subsequent!}'  setting  up  her  title  against  him."  Thus,  where  a 
husband  conveyed  a  farm  to  his  wife,  but  remained  in  possession 
several  years  thereafter,  until  his  death,  some  montlis  prior  to  his 
death  he  granted  the  right  to  mine  coal  on  part  of  this  farm,  to  a 
part}'  who  worked  it  under  the  lease,  during  the  lessor's  lifetime, 
and  after  his  death,  with  the  widow's  knowledge.  The  lessee 
had  no  knowledge  of  the  existence  of  the  deed  by  which  the 
farm  was  conveyed  to  the  wife,  nor  was  it  recorded  until  more 
than  a  year  after  his  death.  After  the  husband's  death  his 
widow  received  payments  of  royalty  under  the  lease,  subsequently 
she  filed  a  bill  to  restrain  the  lessee  from  entering  upon  the  prop- 
erty to  mine  coal ;  by  her  acts  she  had  ratified  and  confirmed  the 
lease  and  was  bound  by  it.'^  Whatever  may  be  the  rule  concern- 
ing the  formalities  needed  to  bind  married  women,  there  is  no 
doubt  they  may  be  estopped  by  their  deliberate  conduct,  as  well 
as  any  one  else.*  If  a  court  can  ever  set  aside  a  conveyance  for 
a  mere  omission  which  is  made  out  by  contradicting  an  official 
act,  where  there  has  been  no  fault  in  the  payment  of  the  prop- 
erty, it  certainly  will  not  do  so  when  the  party  complaining  has 
not  only  consented  to  the  act,  but  has  never  taken  any  course  to 
repudiate  it,  or  to  save  the  grantee  from  the  effects  of  confidence 
in  its  validity.^  So,  where  a  wife  in  the  possession  of  property, 
claiming  to  own  and  control  it,  and  on  her  declartion  of  ownership, 
employs  a  party  to  make  improvements  on  the  same,  under  the 
belief   that  it  is  her  separate    property,  she  will    be   estopped 

1  Hawkins  v.  Brown.  80  Ky.  186.  382. 

"  McCulIougb  V.  Wilson,  21  Pa.  St..  ^  Trout  v.  McDonald,  83  Pa.  St.  144. 

436;  Couch  V.  Sutton,  1  Grant's  Cas.  *  Sliarpe    v.  Foy,  4  Ch.    App.  35; 

114;  Biinkerlioff  v.  Brinkerl:off,  25  N.  Lush's  Trusts,  in  re,  4  Ch.  App.  591. 

J.  E.  194  ;    Connolly   v.  Branstcr,    3  *  Norton  v.  Nichols,  35  Mich.  148; 

Bush,  703;  Drake  v.  Glover,  30  Ala.  Fryer  v.  Rishell,  84  Pa.  St.  521. 


1248  The  Law  of  Estoppel. 

from  denying  that  she  owned  it  Avlieii  sued  for  the  value  of  the 
labor  performed  ;  it  is  wholly  immaterial  whether  she  has  any 
title  to  it  or  not.'  So,  where  a  wife  answers  to  one  to  whom 
her  husband  has  mortgaged  her  personal  property,  and  wlio  is 
demanding  more  security;  "what  more  do  you  want?  you 
have  a  mortgage  on  all  the  personal  property  already,"  had  rati- 
fied her  husband's  act  in  giving  the  mortgage.' 

§  1110.  Married  women  to  the  extent  and  in  the  matter  of 
business  in  which  they  are  by  law  permitted  to  engage,  owe  the 
same  duty  to  those  with  whom  they  deal,  and  may  be  bound  in 
the  same  manner  as  if  unmari'ied.  Where  they  clothe  otiiers 
with  apparent  authority  to  act  for  and  bind  them,  the  apparent 
must  be  taken  as  the  real  authority,  and  they  are  estopped  from 
disputing  it  so  far  as  others  have  been  induced  to  act  upon  the 
faith  of  it.'  Thus  a  husband  obtained  from  liis  wife  her  indorse- 
ment of  a  printed  form  of  a  negotiable  note,  date,  time,  and  place 
of  payment,  amount,  and  name  of  payee,  being  bhmk.  Tlie 
indorsement  was  given  to  enable  the  husband  to  pui'cliase  certain 
goods.  lie  failed  to  make  the  purchase,  subsequently  (liis  wife 
supposing  the  note  to  be  destroyed),  went  to  another  city  and  pur- 
chased a  much  larger  amount  of  goods,  than  he  contemi)lated  at 
the  time  of  the  indorsement.  The  blanks  in  the  note  were  tilled 
up  to  suit  his  purchase,  the-payees  not  being  awai'e  of  the  cir- 
cumstances under  which  the  wife  signed  and  delivered  the  note. 
Her  separate  estate  was  made  liable,  and  the  wife  bound  l)y  the 
indorsement."  In  another  case,  where  the  wife  was  the  owner  of 
the  real  estate  covered  by  mortgage,  with  a  decree  of  foreclosure 
pending;  she  and  her  husband  deeded  it  to  two  of  the  defend- 
ants, with  an  agreement  with  the  husband  alone,  that  they  were 
to  pay  the  decree,  and  when  the  property  was  sold  tlie  proceeds 
were  to  be  applied  to  pay  the  amount  of  the  decree,  to  pay  for 
the  care  and  numagement  of  the  property,  and  an  indebtedness 
due  from  the  husband  to  one  of  the  defendants.  The  wife  did 
not  know  what  contract  had  been  made  with  the  defendants 
except  as  she  was  informed  by  her  husband,  who  procured  the 
deed  to  be  executed  and  delivered  it.     She  intrusted   him  with 

»  Nixon  V.  Hallcy,  78  111.  611.  »  ^odino  v.   Killeen,  b?y  N.  Y.  993; 

»  Merrill  v.  Parker,  113  Mass.  250.      Lavassar  v.   Wushljuru,  50  Wis.  200. 

«  Frauk  v.  Lilieutield,  33  Grait.  377. 


Married  Women.  1249 

her  title  deed,  and  understood  that  Avhatever  arrangement  was  to 
be  made  witli  the  defendant  in  i-elation  to  the  property  was  to 
be  made  by  him.  Held,  that  the  proceeds  of  the  real  estate 
should  be  applied  in  accordance  with  the  husband's  contract  ; 
that  the  rule  applies  that  where  one  of  two  innocent  parties  must 
suffer  by  the  fraud  of  a  third,  he  who  has  reposed  a  trust  in  the 
fraudulent  agent  ought  to  bear  the  loss.'  In  Texas  the  power  of 
the  husband  over  the  community  estate  by  estoppel  is  not  less 
than  that  of  a  partner  to  estop  his  firm.'' 

§  1111.  Where  a  man-ied  woman  intends  to  retain  property  as 
her  own  sole  and  separate  estate,  free  from  her  husband,  she 
should  adopt  some  pla!n  by  which  the  public  will  have  notice  that 
the  property  belongs  to  her  and  not  to  her  husband.  Thus,  a  mar- 
ried woman  who  allows  her  husband  to  use  her  capital  as  his  own, 
invest  and  re-invest  it  in  his  own  name,  and  obtain  credit  on  the 
faith  of  his  being  the  owner  thereof,  will  not  be  allowed  to  inter- 
pose her  claim  to  the  acquired  property  to  the  injury  of  creditors.' 
Thus,  where,  by  allowing  her  husband  to  hold  himself  out  as 
patentee  and  sell  a  patent  right,  and  receive  the  proceeds  which 
she  claimed  should  be  paid  to  her  because  her  husband  was 
improvident,  she  cannot  take  out  a  patent  for  the  same  thing  and 
claim  an  infringement ;'  or  allows  her  husband  to  mortgage  it  in 
her  presence,  uncontradicted,  cannot  claim  it  as  against  the  mort- 
gagees;^ or  allows  he  husband  to  hold  himself  out  as  owner,  as  he 
sees  fit,  on  the  faith  of  which  others  have  acted  ;*  or  if  he  trans- 
acts her  ordinary  business,  the  presumption  is  tliat  it  was  with 
her  assent.' 

§  1112.  A  married  M^oman  is  estopped  from  asserting  any  title 
contrary  to,  or  from  controverting  facts  recited  in  a  cause  to 
which  she  was  a  party.     She  should  have  protected  her  rights  in 

'  Spaulding  v.  Drew,  55  Vt.  25:5.  2-4  N.  Y.  381;   Guill  v.  Hariug,  1  111. 

■2  Kaniiey  v.  Miller,  51  Tex.  263.  App.  490. 

3  Hockett  V.  Bailey,  86  111.  74;  Lich-  ■■  Duster  Co.   v.  Ilibbard,  9  F.  R. 

tenberger  v.  Graham,    50  Ind.    288;  558. 

Bank  v.    Hamilton,  34  N.  J.  E.  158;  *  Levy  v.  Gray,  56  ISIiss.  318. 

Di.xon  V.  Brown,  53  Ala.  428;  Pribble  «  Griffin  v.   Ilamsdell,  71  Ind.  440; 

V.  Hall,  13  Bush,  61;   Brooks  v.  Shel-  Coleman  v.  Serames,  56  Miss.  321. 

ton,  54  Miss.  353;   Duster  Co.  v.  Hib-  '  Early  v.  Ilolfe,  95  Pa.  St.  58. 
bard,  9  F.  R.  558;  Sherman  v.  Elder, 
Vol.  I.— 79 


1250  The  Laav  of  Estoppel. 

that  action.'  So,  where  she  makes  a  disclauiier  of  ownership,  in 
certain  property,  she  cannot  thereafter  assert  it.''  So,  where  an 
ittorney  was  empk)yed  in  a  cause  without  the  woman's  knowl- 
edge, by  her  ixilative  and  general  advisor,  to  assist  her  attorneys 
in  tlie  case,  and  attending  to  the  case  with  her  knowledge,  and 
without  her  repudiation,  ho  will  be  entitled  to  recover  from  her 
for  his  services.  Her  acquiescence  will  be  presumed.'  So,  where 
husband  and  wife  recognize  the  title  of  another  by  taking  a  lease 
thereof  or  agreeing  to  purcliase  the  same,  they  will  be  estopped 
from  disputing  such  title.*  Where  a  married  woman,  after  being 
examined  by  the  judge  apart  from  her  husband,  admits  in  open 
court  that  the  claim  sued  on  inured  to  her  separate  benefit,  she 
will  not  be  permitted  thereafter  to  contradict  such  admission  as 
a  ground  for  attacking  the  judgment.^ 

§  1113.  If  a  married  woman  voluntarily  makes  admissions  and 
representations  in  respect  to  her  rights  of  property  which  deceive 
others,  and  induce  them  to  give  credit  to  the  husband  on  the 
faith  of  the  property,  she  will  be  precluded  from  asserting  her 
claim  against  the  rights  of  those  Avho  have  trusted  in  and  acted 
upon  her  admissions  and  representations."  If  a  wife  permits  an 
arbitration  to  proceed  in  the  name  of  her  husband,  knowing  her- 
self to  be  the  party  in  interest,  she  will  be  bound  by  the  award  ;' 
and  acquiescence  in  a  sale  by  a  married  woman,  attended  with 
the  receipt  of  the  price  by  her  husband,  was  held  to  render  the 
title  of  the  purchaser  valid.*  A  person  succeeding  to  the  title  of 
a  married  wohian,  is  estopped  from  denj-ing  her  competency  to 
make  the  title,  while  on  the  other  hand,  the  decisions  seem  to  be 
quite  as  strong  the  other  waj-.  Thus,  it  is  held,  that  though  the 
wife   be  silent  when  she  knows  her  husband  is  holding  out  her 

>  McCaffy  v.  Corrigan,  49  lud.  17.j;  Edwards,  57  Miss.  128. 

Landers  v.    Douglas,   46    Ind.    522  ;  ^  Thornhill  v.    Bank,   34  La.  Ann. 

Wagner  V.  Evviiig.  44  Ind.  441;  Elson  1171. 

V.  O'Doucl,  40  Ind.  300;  McDaniel  V.  »  Cravens  v.    Booth-,    3    Tex.    243; 

Carver,  40  Ind.  250;  Buell  v.  Sliuman,  Bigelow  v.  Foss,  50   Me.  102;   Cooley 

28  Ind.  67.  v.  Steele,  2  Head,  605;  Dan  v.  Pudney, 

»  Cooley  V.    Steele,    2   Head,    005  ;  13  iMicb.  239 ;  Knowles  v.  Toone,  96 

Cravens  v.  Booth,  8  Tex.  242.  N.  Y.  534. 

3  Yerger  v.  Aiken,  7  Baxl.  539.  '  Smith  v.  Sweeney,  35  N.  Y.  291. 

*  McMath  V.  Teel,  G4  Ga.  595:  Als-  »  Morris  v.    Steward  14   Ind.  334, 

ton  V.  CundiflE,  53  Tex.  453;  Ilobson  v.  Walmsley  v.  Cook,  3  Neb.  344. 


Married  Women.  1251 

property  as  bis  own,  she  is  not  estopped'  even  after  the  payment 
of  the  part  of  the  purchase  money,  for  the  land  in  her  presence, 
has  been  held  not  to  prejudice  her  right  to  claim  the  land,  after 
the  termination  of  coverture.*  A  devisee,  who,  before  real  estate 
is  assigned  to  her  by  the  probate  court,  consents  to  the  sale  by  the 
executor  to  settle  the  estate,  and  to  confirm  the  sale,  quit-claims 
to  the  executor  three  days  afterwards,  is  estopped  from  setting  up 
title  in  herself,  adverse  to  executor  or  his  vendee.^  So,  where 
the  complainant  executed  a  covenant  to  reduce  the  rent,  although 
insufficient  to  accomplish  the  purpose  designed,  and  her  continued 
acquiescence  in  the  receipt  of  the  diminished  rent,  of  which  she 
had  full  knowledge,  and  the  fact  that  she  had  a  trustee  and  other 
agents  learned  in  the  law,  to  look  after  her  interests,  and  was 
entitled  herself  beneficially  to  the  property,  with  power  to  exe- 
cute acquittances  to  her  trustee  or  lessee,  estopped  her  from  suc- 
cessfully invoking  the  aid  of  a  court  of  equity." 

§  1114.  The  contract  of  a  married  M'^oman  being  void,  it  cannot 
be  ratified  unless  by  deed  in  the  mode  prescribed  by  the  statute. 
Positive  acts  of  encouragement  which  might  operate  to  estop  one 
sui  juris^  will  not  afiiect  one  under  legal. disability  ;  and  a  wife 
can  do  or  forbear  to  do  an  act  to  affect  her  propert}",  unless  set- 
tled to  her  separate  use.  Thus,  a  married  woman,  by  agreement 
signed  only  by  herself  and  without  acknowledgment,  contracted 
to  sell  land  ;  she  received  one  year's  interest  and  a  small  part  of 
the  purchase  money.  The  purchaser  took  possession  and  made 
improvements  witli  her  knowledge  and  encouragement.  It  was 
held,  that  she  was  not  estopped  from  recovering  the  land.^ 
When  a  married  woman  keeps  a  boarding  house  with  the  consent 
of  her  husband  and  controls  the  entire  business,  contracts  of  pur- 
chase made  by  her  for  the  purpose  of  such  business  must  be  con- 

»  Drury  v.  Foster,  2  Wall.  24;  Bank  «  Frazier  v.  Gelstoa,  35  Md.  298. 

V.Lee,  13  Pet.  10;  Bemis  v.  Call,  10  *  Gliddeu    v.    Strupler,    52  Pa.   St. 

Allen,  512;   Merrium   v.    R.    K.,    117  400;  Behler  v.  Weyburn,  59  Ind.  143: 

Mass.  241;   McMonis  v.  AVebb,  17  S.  Kogeisv.  Brooks,  80  Ark.  012;  Woods 

0.558.  V.    Terry,    30  Ark.  385;   Coal  Co.  v. 

«  Delancey  v.  IMcKeene,  1  Wash.  C.  Pasco,  79  111.  164;  Saudford  v.  Woods, 

C.  354.  49  Ind.  165. 

3  Crary  v.  Hall,  28  Vt.  364. 


1252  The  Law  of  Estoppel. 

sidereJ  as  contracts  in  relation  to  her  sole  property,  and  therefore 
binding  upon  her.' 

§  1115.  The  principle  that  a  party  cannot  impeach  a  judgment 
on  any  ground  which  might  have  been  pleaded  or  relied  on  as  a 
defense  to  tlie  suit,  does  not  appl)^  to  a  case  when  the  defendant 
is  a  feme  covei%  and  not  sui  juris. "^  A  married  woman  is  not 
estopped  by  confessing  judgment  from  afterwards  denying  that 
the  debt  inured  to  her  benefit.' 

§  1116.  As  a  general  rule,  infants  are  not  bound  by  estoppels. 
It  has  been  held  even  where  an  infant  represents  himself  as  being 
of  full  age,  he  is  not  estopped  from  setting  up  infancy  as  a 
defense  to  a  contract  entered  into  under  such  fraudulent  repre- 
sentation.* It  has  also  been  declared  that  legal  incapacity  cannot 
be  removed,  even  by  fraudulent  representations,  so  as  to  create 
an  estoppel  ia  acts  to  which  the  incapacity  relates.  And  it  is  held 
that  estoppels  in  pais  are  not  applicable  to  infants  and  married 
women,  and  that  fraudulent  misrepresentations  as  to  capacity 
cannot  be  equivalent  for  actual  capacity.' 

§  HIT.  Under  the  Roman  law,°  generally,  all  minors  were 
entitled  to  the  benefit  of  restitution  with  regard  to  all  lawful 
transactions  or  omissions  by  which  they  have  suffered  an  injury.' 
There  wei-e  the  following  exceptions,  viz.  :  When  a  minor  with 
an  evil  intent  has  represented  himself  to  be  of  age  ;"  when  he  has 
been  dechired  to  be  of  age  by  the  proper  authority  ;°  when  after 
having  become  of  age,  he  either  expressly  or  tacitly  approved  of 
the  transaction,  '"  or  if  pubescent  confirmed   it  on    oath  ;"  when 

»  Tillinau  v.    Sbakelton,    15   :Micli.  Innes   v.  Templeton,  95  Pa.  St.  262; 

447:  Diugens  v.  Claucy,  67  Barb.  5  ;6.  S.  C.  40  Am.  R.  (543;  Schuell  v.  Clii- 

■"  UridUh   V.    Clarke,    18    Md.    457;  cago,  38  111.  382;   Fraiiklin  v.  Gault, 

Bridges  v.  McKeuua.  14  Md.  2-58.  12  Ala.  298. 

»  Barues  v.  Burbridge,  15  La.  Anu.  «  Mack  Rom.  L.  §  229,  p.  191. 

628.  '  Fr.  3,  §  4,  D.  4,  4;  Gaius  N.  57. 

•"  ;Merriam  v.  Cunningham,  11  Cush.  »  Const.  1,  3,  C.  2,  43. 

40;  Briely  v.  Russell,  10  N.  H.  184;  »  Const.  1,  C.  2,  45. 

Conrad  v.  Lane,  26  3Iinn.  389;  S.  C,  '"Const.  1,2,  C.  2,  46;   fr.  3,  §  2,  D 

37  Am.  R.  412.  4,  4. 

*  Br  own  v.  McCune,  5  Sandf.  224;  "  Const.  1,  Autli  Sacramenta  Pube- 

Keen  v.    Coleman,    39  Pa.    St.   299;  rum,  C.  2,  28. 
Sims  V.    Everbardt,   102   U.    S.    300; 


Infants.  1253 

the  minor  gave  something  which  propriety  required  ;'  when  after 
a  decree  for  payment  {decretum  de  solvendo),  a  payment  has  been 
made  to  himself  or  guardian,^  and  lastly  there  is  no  restitution 
because  of  a  wrong  by  him/ 

The  Civil  Law,  defining  "  dolutn  malum  esse  omnen  callidi- 
tatem,faUaciani,  machinationem,  ad  circuinvenienduin,  fallen- 
dum,  decipiendum  alterum^  adhihitam^''  says  (the  language  is  that 
of  Ulpian),  "  Item  in  causae  cognitione  versari  laheo  ait,  ne  in 
pujpillwni  de  dolo  detur  actio,  nisi  forte  nom^ine  hereditario  con- 
veniatur.  Ego  arhitior  et  ex  suo  dolo  conveniendum,  si  jji^oxitnus 
pidjertaM  est,  maxime  si  locujpletior  x  hoc  f actus  est,''''  and  in  the 
words  of  Paulus,  "  Quod  e7iim  si  impet^'averit  d  procuratore 
petitoris  ut  ah  eo  absolveretur  /  'i^el  si  de  tutore  m,entitus  peciin- 
tain  accepit ',  vet  alia  similia  admisit,  quae  non  magnam 
machinationem  exigunt.^^  Then  Ulpian,  ''' Sed  ex  dolo  tutoris 
sifactus  est  locupletior  pxdo  in  enrri  dandam  actionem,  sicut 
cxceptio  datur.  And  unquestionably  this  is  the  law  of  England  and 
the  United  States,  that  an  infant,  however  generally  for  his  own 
sake  protected  by  an  incapacity  to  bind  himself  by  contracts,  may 
be  doli  capax  in  a  civil  sense,  and  for  civil  purposes,  in  view  of  a 
court  of  equity,  though  perhaps  only  when  pxd)ertati  proximus . 
or  older,  and  not  at  so  earlj^  an  age  as  in  a  criminal  sense,  and  for 
criminal  purposes,  and  may  therefore  commit  a  fraud,  for  which, 
or  the  consequences  of  which,  he  was  after  his  majority  made 
civily  answerable  in  equity. 

§  1118.  That  an  infant  is  answerable  for  a  fraud  is  clear,  if 
an  infant,  having  a  right  to  an  estate,  permits  or  encourages  a 
purchaser  to  buy  it  of  another,  the  purchaser  will  be  entitled  to 
hold  against  the  person,  who  has  the  right,  althongh  covert,  or 
under  age.'  In  Cory  v.  Gertcken,  the  vice  chancellor,  in  deliver- 
ing the  opinion  of  the  court,  said  :  "  Though  in  general  a  pay- 
ment to  an  infant  may  be  bad,  yet  if  the  infant  practices  a  fraud, 
he  is  liable  for  the  consequences.  At  law,  an  infant  is  liable  in 
tort,  and  cannot  plead  his  infancy ;  as  where  (a  very  strong  case), 

•  Fr.  9,  §  1,  D  4,  4;   Const.  1,  C.  2,         '^  Savage    v.    Foster,     9    Mod.  35; 

30.  Evans  V.  Bicknell,  6  Ves.  174;  Watts 

■"  Const.  25,  C.  5,  37;  Burcbardi,  p.  v.    Cresswell,   9    Vin.    415;  Clare  v. 

248.  Earl  of  Bedford,  13  Vin.  536;  Cory  v. 

«  Fr.  9,  §  2,  D.  4,  4.  Gertcken,  2  Mad.  46. 


1254  The  Laav  of  Estoppel. 

an  action  of  assumpsit  was  brought  against  an  infant  for  money 
embezzled  by  him.*  In  Marlow  v.  Pitfield,'  it  was  determined 
that  if  an  infant  borrows  money,  and  applies  it  in  payment  for 
necessaries,  though  at  law,  he  is  not  liable  to  the  lender  for  the 
money,  yet,  in  equity,  the  lender  stands  in  the  place  of  the 
creditor,  who  was  paid  for  the  necessaiies,  and  may  recover  these, 
as  the  other  might  have  done  at  law.  Infants,  therefore,  may,  in 
some  cases,  be  liable  in  equity,  though  not  at  law.  In  Watts  v. 
Cresswell,'  a  tenant  for  life  borrowed  money,  and  his  son,  who 
was  next  in  remainder,  and  an  infant,  was  a  Avitness  to  the  mort- 
gage deed,  and  the  court  relieved  on  the  ground  of  the  fraud  in 
the  infant,  by  not  giving  notice  to  the  mortgagee  of  his  title. 
That,  certainly,  was  a  very  strong  case,  for  the  young  man  did 
not  know,  but  had  only  heard  of  the  settlement  under  which  his 
title  arose  ;  but  Lord  Cowper  said  :  '  If  an  infant  is  old  and 
cunning  enough  to  contrive  and  carry  on  a  fraud,  he  ought  to 
make  satisfaction  for  it.'  In  Becket  v.  Cordley,'  Lord  Thurlow 
says  :  '  If  there  was  fraud  of  which  the  infant  was  conusant,  she 
would  be  bound  as  much  as  an  adult.'  In  Cicii  v.  Lord  Salisbury," 
an  infant  was  held  to  be  bound  by  an  offer  made  by  him  in  his 
answer,  whereby  the  other  side  were  delayed,  the  infant  not 
having  immediately  after  his  coming  of  age  applied  to  the  court 
to  retract  his  offer,  and  amend  his  answer.  In  Savage  v.  Foster,' 
the  court  held  that,  in  the  case  of  fraud,  '  infancy  or  coverture 
shall  be  no  excuse ;'  and  the  court  not  only  recognized  the  case 
of  Watts  V.  Cresswell,  to  which  I  have  adverted,  but  also  relied 
on  Olerc  v.  Bedford,'  in  which  case,  Clerc,  an  infant,  and  clerk  to 
an  attorney,  had  a  mortgage  on  his  master's  estate,  and  ingrossed 
a  subsequent  mortgage  of  the  same  to  another,  without  giving 
notice  that  the  estate  was  mortgaged  before  to  him  ;  and  for  that 
reason,  on  the  ground  of  fraud,  his  mortgage  was  postponed. 
Apply  these  principles  to  the  present  case,  did  not  William 
Cory,  who  was  nearly  of  age,  and  married,  conceal  liis  infancy  ? 
It  is  clear  he  did.  Did  he  not  employ  his  brother,  an  attorney, 
to  prevail  upon  the  trustees  to  transfer  the  £350  stock,  under  a 

»  Bristow  V.  Eastman,  1  Esp.  N.  P.         n  Bro.  C.  C.  358. 
172.  *  2  Vern.  224. 

»  1  P.  Wms.  558.  « 9  Mod.  35. 

»  9  Vin.  415.  ■•  13  Vin.  Abr.  536-7. 


Infants. 


1255 


representation  that  they  ran  no  risk  in  doing  so?  He  did.  Was 
not  that  a  fraud  ?  The  conceahnent  of  his  infancy,  under  such 
circumstances,  certainly  was  a  fraud,  and  prechides  him,  or  his 
assigns,  wlio  stand  precisely  in  his  situation,  from  calling  for  a 
repayment.'" 

§  1119.  Neither  covertare  nor  infancy  will  excuse  fraud."  An 
infant  who  is  privy  to,  or  practices  a  fraud,  or  commits  a  tort, 
shall  be  bonnd  in  tlie  same  manner  as  if  he  had  been  an  adult.' 
Thus,  where  an  infant  fraudulently  represents  himself  to  be  of 
age  and  thus  obtains  credit  for  goods,  he  is  liable  in  equity  though 
not  in  law.'  So,  where  a  married  woman  represented  herself  to 
be  a  widow  and  borrowed  a  sum  of  money,  she  was  bound  by  her 
representation.^  On  the  principle  that  a  person  shall  not  set  up 
his  own  iniquity  as  a  defense,  any  more  than  as  a  cause  of  action." 
Whenever  an  infant  who  has  arrived  at  years  of  discretion,  by 
direct  participation,  or  by  silence  when  he  was  called  upon  to 
speak,  has  entrapped  a  party,  ignorant  of  his  title  or  of  his  minor- 


'  Cory  V.  Gertcken,  3  Mad.  49-51. 

"  Savage  v.  Foster,  9  Mod.  37;  Cory 
V.  Gertcken,  2  Mad.  51;  Evroy  v. 
Nicholas,  2  Eq.  Cas.  Abr.  489 ;  Evans 
V.  Bicknell,  6  Ves.  174. 

3  Evroy  v.  Nicholas,  3  Eq.  Cas. 
Abr.  489;  Becket  v.  Cordley,  1  Bro. 
C.  C.  353;  Harvey  v.  Astley,  3  Atk. 
607;  Clare  v.  Bedford,  13  Vin.  Abr. 
536;  Savage  v.  Foster,  9  Mod.  37; 
Watts  V.  Cresswell,  9  Vin.  Abr.  415; 
Wilie  V.  Brooks,  45  Miss.  543;  Mont- 
gomery V.  Goi-don,  51  Ala.  377;  Fitts 
V.  Hall,  9  N.  H.  441;  Dead  v.  Wood, 
9  Baxt.  296;  Eaton  v.  Hill,  50  N.  H. 
235;  Beasley  v.  State,  3  Yerg.  491; 
Prcscott  V.  Norris,  33  N.  H.  101; 
Sikes  V.  Johnson,  16  Mass.  389;  Wilt 
V.  Welsh,  6  Watts,  9;  Humphrey  v. 
Douglass,  10  Vt.  71;  Lewis  v.  Little- 
field,  15  Me.  233;  Brown  v.  Ma.\well, 
6  Hill,  593;  Baxter  v.  Bush,  39  Vt. 
465;  Bullock  v.  Babcock,  3  Wend. 
391;  Hartfield  v.  Roper,  31  Wend. 
615;  Walker  v.    Davis,  1   Gray,   50G; 


Barham  v.  Turberville,  1  Swan,  437; 
Mathews  V.  Cowan,  59  111.  341. 

^  Nelson  v.  Stocker,  28  L.  J.  Ch. 
760;  King,  in  re,  3  De  G.  &  J  63; 
Wright  V.  Snow,  ^  De  G.  &  S.  331 ; 
Clarke  v.  Cobhiy,  3  Cox,  373;  Huges 
V.  Gailans,  10  Phila.  618;  Kilgore  v. 
Jordon,  17  Tex.  341. 

^  Vaughan  v.  Vanderstegan,  3  Drew, 
369. 

*  Montefiori  v.  Montefiori,  1  W.  Bl. 
353;  Overton  v.  Bannister,  3  Hare, 
503;  Dnny  V.  Drury,  5  B.  C.  C.  506; 
Money  v.  .Jordon,  3  B.  G.  M.  &  G. 
318;  S.  C,  4  H.  L.  C.  185;  Watson, 
in  re,  16  Ves.  265;  Clarke  v.  Cobley, 
2  Cox,  173;  Teynham  v.  Webb.  3  Ves. 
198;  Bates,  in  re,  3  M.  D.  &  D.  337; 
Stikeman  v.  Dawson,  1  De  G.  &  S. 
90:  Bustoro  V.  Eastman,  1  Esp.  193; 
Nelson  v.  Stocker,  4  De  G.  &  J.  458; 
Barham  v.  Turbeville,  1  Swan,  437; 
Whitrington  v.  Wright,  9  Ga.  23; 
Thompson  v.  Simpson,  3  Jo.  &  L. 
110;  Esron  v.  Nichols,  4  De  G.  &  S. 
90. 


1256  The  Law  of  Estoppel. 

ity,  into  purcliasiiiii:  liis  property  from  another,  or  who  in  selling 
real  estate,  represents  himself  to  be  of  full  age,  and  induces  tile 
party  to  buy  on  the  strength  of  that  representation,  cannot  disaffirm 
his  contract  on  the  ground  of  infancy.'  Thus,  an  infant  knowing 
her  rights,  conveyed  land  to  her  father  for  the  ^jurposc  of  enabling 
him  to  borrow  money  thereon,  by  executing  a  mortgage  to  one  in 
ignorance  of  lier  minority.  The  money  was  loaned ;  and  subse- 
quently the  lender  being  still  ignorant  of  her  minority,  the  father 
conveyed  the  land  in  satisfaction  of  the  debt.  The  infant  arriv- 
ing at  full  age,  brought  ejectment  for  the  land.  And  it  was  held^ 
that  a  court  of  equity  would  restrain  her  from  asserting  her  legal 
title,  and  thus  perpetrating  a  fraud." 

§  1120.  An  infant  may  preclude  himself  from  setting  up  title 
to  property  by  disclaiming,  actively  or  by  silence,  any  right  to 
the  same,  and  tliereby  inducing  another  to  purchase  it  as  the 
property  of  the  assumed  owner.'  ''  When  anything  in  order  to  a 
purchase  is  publicly  transacted,  and  a  third  person  knowing 
thereof,  and  of  his  o'.vn  right  to  the  lands  intended  to  be  pur- 
cliased,  and  doth  not  give  the  purchaser  notice  of  such  right,  he 
shall  never  afterwards  be  admitted  to  set  up  such  right  to  avoid 
the  purchase  ;  for  it  was  an  apparent  fraud  in  him  not  to  give 
notice  of  his  title  to  the  intended  purchaser,*  and  in  such  case 
infancy  or  coverture  shall  be  no  excuse  ;  for  though  the  law  pre- 
scribes formal  conveyances  and  assurances  for  the  sales  and 
contracts  of  infants  and  feme  coverts^  which  every  person  who 
contracts  with  them  is  presumed  to  know  ;  and  if  they  do  not 
take  such  conveyances  as  are  necessary,  they  are  to  be  blamed  for 
their  own  carelessness,  when  they  act  with  their  eyes  open  ;  yet 

'  Prouty  V.    Edgar,   6    Iowa,    353;  WhiltiDgton  v.    Wriglit,    9    Ga.    23; 

Ferguson  V.  Bobo,  5-t  Miss.  121;  Watts  Irvvm  v.  Merrill,  Dud.  72;  Tiiompson 

V.  Crcsswell,    9    Yin.    415;   Cluro   v.  v.  Simpson,  2  Jones  L.    110;   Stocke- 

Bedfonl,  13  Vin.  536;  Irwin  v.  Merrill,  man  v.  Dawson,   1  De   G.   &   S.   90; 

Dud.  (Ga.)   72:    Hall    v.    Timons,   2  Wright  v.  Snow,  2  De  G.  &  S.  321; 

Rich.  Eq.  120;  Barhani  v.  Turbeville,  Joint  Stock  Assoc,  v.  King,  3  De  G. 

1  Swan,  487;  Adams  v.  Fite,  59  Tenn.  &    ,1.    63;  Wood  v.    Vance,  1  N.   & 

69.  M.  197;  Morris  V.  Wait,  2  Rich.  148. 
■^  Ferguson  V.  Bobo.    54  Miss.    121.  *  Mocatta  v.  Murgatroyd.  1  P.  Wms 

"  Overton  V.  Bauuisier,  3  Hare*  503;  393;  Good  title    v.    Morgan,    IT.    R. 

Esron  v.  Kieholas,  1  De  G.  &  S.  118;  762;  Towle  v.   Rand,  2    Bro.    C.  C. 

Hall  V.  Timmons.    2  Rich.    Eq.    ;20;  650 


Infants.  1257 

when  their  right  is  secret,  and  not  known  to  the  purchaser,  but 
to  themselves,  or  to  such  others  who  will  not  give  the  purchaser 
notice  of  such  right,  so  that  there  is  no  laches  in  him,  this  court 
will  relieve  ogainst  that  right,  if  the  person  interested  will  not 
give  the  purchaser  notice  of  it,  knowing  he  is  about  to  make  the 
purchase  ;  neither  is  it  necessary,  that  such  infant  ox  feme  covert 
should  be  active  in  promoting  the  purchase,  if  it  appears,  that 
they  were  so  privy  to  it  that  it  could  not  be  done  without  their 
knowledge.'"  In  a  late  case  it  was  said,  "  that  if  the  plaintiff  can 
aver  and  prove  that  he  was  induced,  by  the  positive  affirmation 
of  the  defendant,  to  believe  that  he  was  of  age  when  the  contract 
was  made,  and  that  the  defendant  at  the  time,  sought  to  entrap 
him  into  the  contract,  then  secretly  intending  to  repudiate  it  to 
his  own  profit  and  to  the  plaintiff's  loss,  he  would  be  liable  for  the 
damage  resulting  from  his  fraud.'"' 

§  1121.  An  infant's  acts  may  be  ratified  by  acts  of  recogni- 
tion, acquiescence  or  estoppel,  as  well  as  by  express  promises. 
But  the  ratification,  whether  by  acts  or  words,  should  be  equiva- 
lent to  a  new  promise.'  The  deed  of  an  infant  is  not  void,  but 
only  voidable;  and,  after  attaining  majority,  he  may  at  his 
election  affirm  or  disaffirm  it.  Acts  of  disaffirmance  need  not  be 
as  solemn  as  the  original  deed.  Affirmance  is  shown  by  positive, 
unequivocal  action,  and  not  by  mere  passiveness,  unless  the  ven- 
dee, with  the  infant's  knowledge,  is  making  expenditures  on  the 
property  as  absolute  owner.'*  Thus,  where  he  stands  by  without 
warning  or  protest,  and  sees  the   property  greatly  enhanced  by 

'  Savage  v.  Foster,  9  Mod.  37.  Bigelow  v.  Graanis,  2  Hill,  120;  Mil 

=■  Ycager  v.  Knight,   60  Miss.  730.  lard  v.  Hewlett,  19  Wend.  301;   Ford 

3  Proctor    V.    Sears,    4.  Allen,    95;  v.    Phillip,    1   Pick.    202;   Wilcox   v. 

Pierce  v.  Tobey,  5  Met.  168;  Aldrich  Roath,  12  Conn.    550;   Thompson  v. 

V.  Griuals,  10  N.  H.  194;  Hodges  v.  Lay,  4  Pick.  48;  Goodsell  v.  Mj'crs,  3 

Hunt,  22   Barb.  150;   Hoit   v.  Under-  Wend.  479;   Gay  v.  Ballon,  4  Wend. 

hill,  9  N.  H.  439;  Mawson  v.  Blaue,  403;    Smith    v.    Mayo,    9    Mass.   63; 

10  Exchq.    206;   Rogers  v.    Kurd,  4  Barnaby  v.    Barnaby,    1    Pick.    221; 

Day,    57;   Merriam  v.  Wilkins,  6  N.  Alexander  v.  Hutchinson,  2   Hawks. 

H.  432;  Kline  v.  Beebe,  6  Conn.  494;  235. 

Irvine  V.  Irvine,  9  Wall.  625;Orvisv.  <  Highley  v.   Barrow,  49  Me.  103; 

Kimball,  2  N.  H.  314;  Hale  v.  Gerrish.  Allen  v.  Poole,  54  Miss.  323;  Drake  v. 

8  N.  H.  374;  Morrill  v.  Alden,  19  Vt.  Wise,  36  Iowa,  476;  Irvine  v.  Irvine. 

505;  Jackson  v.  Mayo,   11   Mass.  47;  9  Wall,  625. 


1258 


The   Law  op  Estoppp:l. 


valuable  improvements,  placed  upon  it  bj  others,  be  will  not  tben 
be  permitted  to  disavow  bis  affirmance.  Any  act  or  declaration 
which  recognizes  the  existence  of  the  promise  as  binding  is  a  rati- 
fication of  it,  just  as,  in  the  case  of  agency,  anything  which  recog- 
nizes as  binding  an  act  done  by  an  agent,  or  by  a  psirty  who  has 
acted  as  agent,  is  an  adoption  of  it.'  So,  an  election  by  a  minor, 
after  arriving  at  age  of  majority,  with  full  knowledge  of  his  rights, 
estops  him.*  If  the  infant  purchaser  of  personal  property,  who 
has  bought  on  credit,  retains  and  uses  it  for  an  unreasonable  time 
after  be  becomes  of  age,  without  giving  notice  of  an  intention  to 
avoid  the  contract,  or,  if  after  coming  of  age,  refuses  to  deliver 
it,  or  otherwise  asserts  his  ownership  by  some  unequivocal  act,  he 
may  be  taken  to  have  ratified  the  contract,  and  thereby  rendered 
himself  lialile  for  the  price. ^  An  infant  cannot  retain  the  bene- 
fits of  his  contract,  and  thus  affirm  it  after  becoming  of  age,  and 
yet  plead  infancy  to  avoid  the  payment  of  the  purchase  money.* 
Acquiescence  for  a  great  length  of  time  after  reaching  the  age  of 
majority  will  also  be  an  affirmance.^  Thus,  three  and  a  half 
years  after  ceasing  of  her  disabilities,  held  sufficient.^ 


'  Harris  v.  Wall,  1  Exchq.  122; 
Hartly  v.  Wharton,  11  A.  &  E.  934. 

'^Padfiold  V.  Pierce.  72  111.  500; 
Penn  v.  Ilersej-,  19  111.  295:  Smith  v. 
Alexander,  19  Pa.  St.  424:  ]Maple  v. 
Kussart,  53  Pa.  St.  349;  Pursley  v. 
Hays,  17  Iowa,  310;  Kane  Co.  v.  Her- 
rington,  50  111.  232;  Gibson  v.  Roes, 
50  111.  383;  Montgomery  v.  Gordon,  51 
Ala.  377;  Drake  v.  Wise,  36  Iowa, 
476;  Handy  v.  Noonan,  51  Miss.  166; 
Tanlum  v.  Coleman,  26  N.  .1.  Eq.  128. 

3  Lawstm  v.  Lovejny,  8  Me.  405; 
Boyden  v.  Boyden,  9  Met.  519;  Smith 
V.  Kelly,  13  Met.  309;  Bordy  v.  Mc- 
Kinney,  23  Me.  517;  Deason  v.  Boyd, 
1  Dana,  41;  Aldrich  v.  Grimes,  10  N. 
H.  194:  Alexander  v.  Herlot,  1  Bail. 
Eq.  223;  Thing  v.  Libbey.  16  Me.  55; 
Eubauks  v.  Peak,  2  Bail.  497;  Rob- 
bins  V.  Eaton,  10  N.  II.  561 ;  Cheshire 
V.  Barrett,  4  McCord,  241;  Thompson 
V.  Leach,  2  Vent.  203;  Southerton  v. 


Whitlock,  2  Str.  690;  Chandler  v. 
Simmons,  97  Mass.  511  ;  Morse  v. 
Wheeler,  4  Allen.  570. 

••  Overton  v.  Bannister,  3  Hare,  503; 
Hall  V.  Time  us,  3  Rich.  Eq.  120: 
Thompson  v.  Simpson,  2  Jones  L. 
110;  Joint  Stock  Co.  v.  King,  3  De  G. 
&  J.  63;  Wright  v.  Snow,  2  De  G.  & 
S.  321;  Esron  v.  Nicholas,  1  De  G.  & 
S.  118;  Whittington  v.  Wright.  9  Ga. 
23;  Stokeman  v.  Dawson,  1  De  G.  & 
S.  90;  Henry  v.  Root,  33  N.  Y.  526; 
Kline  v.  Beebe,  6  Conn.  494;  Bigelow 
V.  Kinney,  3  Vt.  353;  Cheshire  v.  Bar- 
rett, 4  McCord,  211;  Lynde  v.  Budil, 
2  Paige,  191;  Kitchen  v.  Lee,  11  Paige, 
107;  Deason  v.  Boyd,  1  Dana,  45; 
Badger  v.  Phinney,  15  Mass.  359; 
Walsh  V.  Powers,  43  N.  Y.  23. 

^  Sims  V.  Bardonier,  86  Ind.  87;  S. 
C,  44  Am.  R.  263. 

'  Goodnowv.  Lumber  Co.,  31  Minn. 
468;  S.  C,  47  Am.  R.  798. 


Infants.  1259 

§  1122.  In  all  cases  of  judicial  acts  of  a  court,  under  an  author- 
ity not  derived  from  an  infant,  they  are  binding  and  conclusive.' 
And  a  judgment  against  an  infant  in  cases  of  tor%  or  contracts 
which  are  absolutel}^  binding  upon  him,  is  as  conclusive  ftpon  him 
as  upon  an  adult.  And  in  pai-tition,  a  judgment  is  binding  upon 
an  infant  where  the  judgment  is  regularly  entered  upon  the 
appearance  of  the  infant,  by  his  guardian  ad  litems  Where  a 
person,  dealing  with  an  heir  or  reversioner,  shows  that  the  trans- 
action is  reasonable  and  that  a  fair  price  has  been  given,  either 
for  a  reversionary  interest,  annuity  or  post  obit  bond,  a  court  of 
equity  will  not,  in  the  absence  of  fraud,  set  it  aside.'  Where  the 
heirs,  after  coming  of  age,  with  full  knowledge  of  the  facts, 
receive  and  retain  their  share  of  the  purchase  money  from  a  sale 
by  their  guardian  of  their  interests  in  lands,  they  thereby  estop 
themselves  from  questioning  the  validity  of  such  sale  on  the 
ground  of  defect  in  the  proceeding,^  even  if  the  decree  be  void. 
A  guardian  who  has  sold,  under  order  of  court,  real  estate  of  his 
wards,  waived  his  vendor's  lien  by  giving  up  the  original  notes 
for  the  purchase  money  and  taking  new  notes,  secured  by  a  mort- 
gage of  a  portion  of  the  premises  ;  in  a  suit  by  the  wards  to 
enforce  the  mortgage,  they  could  not  deny  the  guardian's  author- 
ity to  waive  the  lieu  while  they  claimed  under  the  mortgage.^ 

§  1123.  Where  a  person  having  title  to  property,  of  which  he 
is   apprised,   stands  by  and   suffers  it  to   be  sold   by  the   sheriff, 

1  Brown  v.  Armstead,  6  Hand.  574;  Miss.  680;  Hadley  v.  Pickett,  25  Ind. 

Mills  V.  Dennis,  3  Johns.  Ch.  367.  450;  O'Connor  v.   Carver,  12  Heisk. 

'  Crogan  v.   Livingstone,  17  N.  Y.  436;  Kempe  v.  Pintard,  32  Miss.  324; 

218;  Althouse  v.  Radde,  3  Bosw.  410.  Tantum  v.  Coleman,  26  N.  J.  E.  128; 

3  Dews  V.  Brandt,  Sel.  Ch.  Ca.  7;  Drake  v.  Wise,  36  Iowa,  476;  Willie 

Batty  V.  Lloyd,  1  Vern.  141;  Wharton  v.    Brooks,    45    Miss.    542;    Lee    v. 

V.  May,  5  Ves.  27;  Curling  V.  Towns-  Gardiner,    26   Miss.   521;   Upshaw   v. 

end,  19  Ves.  634;  Lord  Alborough  v.  Gibson,  53  Miss.  341;  Gibson  v.  Rees, 

Tyre,  7  C.  &  F.  436.  50  111.   383;  Barham  v.  Turbeville,  1 

<  Deford  v.   Mercer,   24  Iowa,  118;  Swan,  437;  Whitington  v.  Wright,  9 

Thillate  v.  Stanly,  14  Ind.  409;  Adlura  Ga.  23;  Maple  v.  Kussart,  53  Pa.  St. 

v.  Yard,  1  Rawle,  171;  Commonwealth  349;  Smith  v.  Warder,  19  Pa.  St.  424; 

v.  Sliuman,  18  Pa.  St.  343;  Handy  v.  Pursley  v.  Hays,  17  Iowa,  311;  Kane 

Noonan,  51    Miss.    166  ;   Padfield   v.  Co.  v.  Herriugton,   50  111.  222;  Penn 

Pierce,  72  111.  500 ;  Gaines  V  Kennedy,  v.     Heisey,    19    111.    295;    Esron    v. 

63   Miss.    103;    Strobel    v.    Smith,    8  Nicholas,  4  De  G.  &  S.  118. 
Watts,   280;  Parmlee  v.  McGinty.  52         ^  Hadley  v.  Pickett,  25  Ind.  450. 
Miss.  476;   Douglass  v.  Bennett,  51 


1260  The  Law  of  EsTorPEL. 

without  asserting  his  title  or  making  it  known  to  bidders,  he  can- 
not afterwards  set  up  his  chiini.'  A  party  cannot  be  permitted 
to  allow  his  property  to  be  sold  under  a  judicial  process,  and  then 
claim  thd  proceeds  under  the  allegation  that  he  did  not  owe  the 
debt  which  the  property  was  sold  to  pay."  And,  in  such  case, 
even  infancy  would  be  no  protection,  provided  the  mind  had 
arrived  at  those  years  of  discretion  when  a  fraudulent  intent  could 
reasonably  be  imputed  to  him.^  Where  land  was  conv^cyed 
fraudulently  as  against  creditors,  and  a  creditor  of  the  grantor 
sued  him,  and  was  about  to  levy  on  the  land,  and  thereupon  it 
was  sold  for  a  fair  price,  and  a  large  part  of  the  sum  received  was 
paid  to  the  creditor,  he  could  not  object  to  the  purchaser's  title.-* 
Where  land  is  devised  to  A,  subject  to  the  maintenance  of  his 
mother,  and  he  allows  her  to  sell,  joining  her  in  the  deed,  and 
requests  the  purchaser  to  make  tlie  notes  for  the  unpaid  part  oF 
the  price  to  her ;  lie  is  estopped  from  setting  up  a  claim  for 
the  purchase  money,  and,  though  he  caused  the  notes  to  be  so 
executed  to  defraud  creditors,  he  cannot  question  her  title  to 
them,  ^ 

§  1124.  Where  husband  and  wife  separate  under  articles  in 
which  he  covenants  that  he  will  not  claim  or  demand  any  piop- 
erty  which  she  shall  thereafter  own  or  acquire,  and  he  is  accoi'd- 
ingly  relieved  during  her  life  from  her  support,  he  is  estopped 
from  claiming  a  life  estate  in  one  third  of  her  real  estate  after 
lier  death.*  The  concurrence  or  acquiescence  of  a  husband  in  .a 
settlement,  though  he  be  a  minor,  will  preclude  him  from  taking 
any  objections  to  it/  If  a  husband  acquiesces  in,  or  confirms  a 
settlement,  he  will  not  afterwards  be  allowed  to  dispute  it.^ 
Where  a  person   of  unsound   mind   makes  a  contract  which   is 

'  Mason  v.  William,  66  N.  C.  564.  ^  Hu„t  y.  Coon,  9  Ind.  537. 

"  Weedon  v.  Landreaux,26  La.  Ann.         «  Slocumb  v.  Glubb,  2  Bro.  C.  C. 

729.  545. 

3  Davis  v.   Tingle,  8  B.  Hon.  539;         ■<  Maber  v.  Hobbs,  2  Y.  &  C.  Excliq. 

McDonald  v.   Lindall,  3  Rawle,  402;  Ca.  817;   England  v.  Downs,  2  Beav. 

Wbittington  V.  Wright,  9  Ga.  23;  Bar-  535;  Asliton   v.    McDougall,   5  Beav. 

ham  V.  Turberville,  1  Swan,  437.  56;   Grazebmok   v.  Percival,   14  Jur. 

*  Seymour  v.    Lewis,   13   N.  J.  E.  1103;   Loader   v.  Clarke,  2   M.  &  Y. 

439;   Gottschalk  v.  De  Santos,  12  La.  383. 

Ann.  473;  Mullen  v.  Follain,  12  La.         «  Wallace  v.  Bassett,  41  Barb.  93. 
Ann.  838. 


Administratoks.  1261 

beneficial  to  him,  the  law  suffices  or  presumes  the  existence  of  the 
requisite  capacity,  or  for  his  protection  estops  tlie' other  party  to 
set  up  and  sustain  the  objection.' 

§  1125.  An  estoppel  in  ixds  may  arise  from  the  acts  of  an 
administrator  and  be  set  up  against  him.''  Thus  an  administrator, 
who  finds  property  among  the  assets  of  the  estate,  and  takes  pos- 
session of  it  as  tlie  property  of  the  estate,  and  sells  it,  having  no 
claim  to  it  himself,  it  not  being  claimed  by  any  other  person,  is 
estopped  from  setting  up  a  claim  adverse  to  the  estate,  and  is 
liable  to  the  estate  for  the  property  thus  sold.'  So  an  adminis- 
trator pays  out  money,  having  several  funds  in  his  hands  belong- 
ing to  the  estate,  having  charged  the  payment  to  one  fund  in  his 
annual  settlements,  cannot  thereafter  apply  such  payments  as  a 
credit  against  other  funds,  having  made  his  election  he  is  bound 
by  it.*  So,  where  purchase  money  arising  from  a  sale  of  a  por- 
tion of  an  estate  has  been  accounted  for  as  an  asset  on  final 
settlement,  neither  ho  nor  creditors  who  have  participated  in  its 
distribution,  will  be  permitted  to  question  the  validity  of  the 
proceedings  although  they  might  have  been  set  aside.^  So,  where 
an  administrator  who  has  loaned  estate  funds,  and  in  an  account- 
ing treats  the  loan  as  cash  in  his  hands,  is  estopped  from  claiming 
to  be  exonerated  from  liability.®  So,  where  one  of  two  adminis- 
trators surrenders  property  to  a  devisee  by  mistake  with  assent 
of  the  co-executor,  both  are  estopped  to  deny  the  propriety  of 
such  delivery.  Where  services  beneficial  to  an  estate  are  I'endered 
at  the  request  of  the  party  interested,  such  party  is  estopped  from 
objecting  to  the  allowance  of  a  just  compensation  for  them  in  the 
settlement  of  the  administrator's  account.'  So  one  who  recognizes 

1  Allen  V.  Beriyhill,  27  Iowa,  534.  *  Wrigbt  v.   VVrigiit,  73  N.  Y.  149; 

2  Thomas  v.  Brooks,  6  Tex.  369.  Lacoste's  Estate,  Myr.  P.  R.  (Cal.)G7; 
»  Iiby  V.  Kitchen,  43   A.   La.  438;      Hanisou   v.    Pool,  16   Ala.  157;   Mc- 

White  V.  Swaiu,  3  Pick.  365;  Ander-  Cravej^  v.  Remsen,  19  Ala.  430. 

son  V.  Smont,  Spear  Ch.  313;  Duncan  *  Bell  v.  Craig,  53  Ala.  315;  Shepley 

V.  Bryant,  11  Ga.  63;  Miller  v.  Jones,  v.  Farnsworth,  4  Mass.  633;  Dutort  v. 

26   Ala.  247;   Manigault   v.    Deas,  1  Cox,  Riley  Ch.  213;  Mardis  v.  Mardis, 

Baily  Eq.  383;  Colburu  v.  Boughlon,  13  La.  Ann.  236;  Winn  v.  Brown,  14 

9  Ala.  551  ;   Henderson  v.  Segars,  38  La.  Ann.  682. 

Ala.  553;  Goodwin  v.  Young,  23  Ala.  «  Waring  v.  Purcell,  1  Hill  Ch.  193; 

553;  Critchfield  v.  Haynes,  14  Ala.  49;  Phillips  v.  Rogers,  13  Met.  26. 

Wiswell  V.  Stewart,  33  Ala.  433.  '  Wendell  v.  French,  19  N.  H.  205. 


1262  The  Law  of  Estoppel. 

an  administrator  in  his  representative  capacity,  cannot  when  sued 
bj  him  on  the  contract  plead  ne  imqiies  administrator.'^  An 
administrator  is  estopped  by  the  act  of  his  intestate,  who  in  his 
life  time,  assigned  personal  property,  even  though  fraudulently, 
to  den}'  the  title  of  the  assignee  and  cannot  maintain  an  action  to 
recover  it.*  An  executor  or  administrator  is  not  bound  to  advise 
the  devisees  as  to  their  rights,  &c.,  but  if  he  assumes  to  advise 
them,  he  must  give  correct  and  true  advice,  so  far  as  reasonable 
efforts  on  his  part  may  enable  him  to  do.  And  if  he  gives  them 
advice,  which  is  erroneous  and  it  is  acted  upon  by  them,  he  is 
estopped  from  afterwards  taking  any  advantage  therefrom,  and 
the  acts  of  such  parties  are  binding  upon  him.*  One  who  executes 
an  instrument  as  administrator  is  estopped  to  deny  his  executive 
capacity.* 

§  1126.  The  acts  and  admissions  of  one  of  several  administra- 
tors which  amount  to  an  estoppel  against  him  binds  the  whole.* 
Thus,  were  one  of  several  administrators  was  present  at  a  levy 
upon  the  property  of  his  intestate  and  furnished  to  the  ofiiecrs  a 
list  of  the  propert)%  and  was  present  at  the  sale  and  made  state- 
ments to  the  bidders,  although  it  did  not  appear  that  he  acted 
fraudulently,  it  was  held,  that  he  and  the  other  administrators 
were  estopped  from  proceeding  against  the  officer  as  a  trespasser.* 
Where  a  party  is  both  administrator  and  guardian,  and  receives 
funds  as  administrator  which  belong  to  tiie  guardian  and  fails  to 
credit  himself  with  it  as  guardian,  he  is  estopped  to  deny  that  he 
received  them  as  administrator.'  A  legatee  who  has  prayed  the 
orphans'  court  to  recommit  a  report  to  an  auditor  is  estopped  from 
alleging  that  such  auditor  was  improperly  appointed."  Tlie  exe- 
cutors of  a  deceased  principal  are  estopped  from  relying  on  his 
death  as  a  revocation  of  the  agency  against  a  honafide  purchaser, 
where  the  act  is  in ])ais  and  may  be  done  by  the  agent  in  his  own 

'  Hill  V.  Iluckabee,  53  Ala.  155.  «  Pondar    v.    Mosely,    2   Fla.    207; 

*  Buitou  V.  Faiinbolt,  86  X.  C.  260;      Williamson  v.  Ross,  33  Ala.  509. 
Masterson  v.  Pullen,  62  Ala.  145.  ^  Wilson  v.  Wilson,  17  Ohio  S.  150; 

3  Bolin  V.  Barker,  75  N.  C.  47;  Rice  Wilson  v.  Knighl,  IS  Ala.  129;  Acker- 

V.  Bi.xler,  1  W.  «fc  S.  445.  man  v.  Vieland,  14  N.  J.  E.  23;  Scott 

♦  Duval  V.  Marshall,  30  Ark.  230.  v.  :VIoore,  14  Sim.  35;   3IcWil]iams  v. 
5  Camp    V.    Closely,    2    Fla.    171  ;  Ramsay,  23  Ala.  813;  Irby  v.  Kitchell, 

Wheeler  v.  Wheeler,  9  Cow.  34.  42  Ala.  438. 

8  Ludlam's  Estate,  13  Pa.  St.  188. 


ADMIJflSTRATORS.  1263 

name.'  The  attorney  in  an  execution  who  refuses  to  state  whether 
lie  directs  a  sale  of  a  particular  chattel  by  instruction  of  his  client, 
and  challenged  a  suit  against  himself,  is  estopped  from  denying 
that  he  acted  on  his  individual  responsibility.^ 

§  1127.  Where  the  administrator  of  an  estate,  who  was  also  an 
lieir  and  agent  for  the  other  Jieirs,  and  as  such  in  possession,  and 
had  control  and  management  of  a  lot,  allowed  a  third  party  to 
obstruct  a  way  adjoining  the  lot,  by  building  a  barn  thereon  with- 
out laying  any  claim  to  said  way,  but  protested  against  the  build- 
ing extending  over  the  lot,  he  is  estopped  from  laying  any  claim 
to  the  way  against  the  third  party  or  his  grantees.'  A  private 
sale  by  an  administrator  in  his  individual  capacity,  of  property  of 
his  intestates'  estate,  estops  him  from  recovering  the  property 
from  his  vendee,  but  does  not  pass  the  title  to  the  property  out  of 
the  estate  ;  and  if  the  sale  is  perfected  by  delivery,  and  the 
administrator  subsequently  acquires  possession,  he  is  estopped 
from  setting  up  against  his  vendees  the  invalidity  of  the  sale 
made  by  himself.* 

§  1128.  It  has  been  pretty  generally  conceded  that  there  is  no 
estoppel  against  a  State  or  the  United  States.^  But  to  this,  as  to 
almost  all  other  propositions,  there  are  numerous  exceptions. 
Public  agents  or  officers  who  act  in  violation  of  their  authority, 
that  is,  of  public  law,  do  not  bind  the  public  by  such  illegal  acts; 
and  all  men  are  bound  to  take  notice  of  the  authority'  of  such 
agents.*  But  it  is  a  well  settled  principle  applicable  alike  to 
States  or  the  United  States,  that  whenever  a  governinent  descends 
from   the  plane  of  sovereignty  and  contracts  with  parties,  such 

»  Ish  V.  Crane,  8  Ohio  St.  528.  Wheat.  730;  Janson  v.  People,  7  J.  R. 

»  Ford  V.  Williams,  24  N.  Y.  359.  332;   People  v.  Russell,  4  Wend.  574; 

*  Dodge  V.  Stacy,  39  Vt.  558;  Rice  Seymour  v.  Van  Slyck,  8  Wend.  422; 
V.  Bixler,  1  W.  &  S.  445.  People  v.  Bank,  75  N.  Y.  547;  Lee  v. 

*  Bragg  V.  JVIassie's  Adm'r,  38  Ala.  ^Munroe,  7  Cranch,  366;  Stevenson  v. 
89.  Mortimer,     Cowp.    805  ;     Taylor    v. 

6  Pierce  v.   U.  S.,  1  Ct.  of  CI.  270;  Plumer,    3   M.   &   S.    562;   People  v. 

State  V.  Hastings,  10  Wis.  526;  Super-  Brown,  67  111.  435. 
visors  V.  Ellis,  59  K  Y.  625;  Johnson         «  Orton   v.  State,  12  Wis.  509;  Ten- 

V.  U.  S.,  5  Mason,  425;   Curtiss  v.  U.  ney  v.  State,  27  Wis.  387;  Kneeland 

S.,  2  Ct.  of  Claims,  144;  Hunter  v.  U.  v.   Milwaukee,   18   Wis.  411;   Harney 

S.,  5  Pet.  173;  U.  S.  v.  Van  Zandt.  11  v.  Hastings,  12  Wis.  596;  Randall  v. 

Wheat.  184;  U.  S.  v.  Kirkpatrick,  11  State,  16  Wis.  340. 


1264  The  Law  of  Estoppel. 

government  is  regarded  as  a  private  person  itself,  and  is  bound 
accordingly.'  So,  vplierc  a  deed  is  executed,  or  a  contract  made 
on  behalf  of  a  State  by  a  public  officer  duly  authorized  and  this 
fact  appear:  on  the  face  of  the  instrument,  notwithstanding  that 
tiic  officer  may  be  described  as  one  of  the  parties,  and  may  have 
affixed  his  individual  name  and  seal,  in  such  cases  the  State  alone 
is  bouned  by  the  deed  or  contract  and  can  alone  claim  its  benefits.' 
Where  the^powers  and  duties  of  officers  are  defined  by  the  law 
itself  any  act  within  the  scope  of  the  powers  there  conferred, 
makes  the  government  liable  to  the  extent  of  the  power  it  has 
actually  given  to  its  officers  by  the  law.'  Thus,  a  final  settlement 
made  by  a  public  officer  in  a  State  with  another  officer  which  is 
made  in  pursuance  of  a  statute,  and  which  received  the  approval 
of  the  legislature,  estops  the  State  afterwards  to  disregard  the 
settlement  and  sue  for  moneys  alleged  to  have  been  due  prior  to 
the  settlement.*  So,  where  it  is  the  duty  of  certain  ^designated 
officers  of  a  State  to  make  selections  of  land  under  federal  laws, 
the  State  is  estopped  by  the  action  of  sucii  officers/  In  the 
absence  of  fraud  or  collusion,  the  acts  of  public  officers  acting  on 
behalf  of  the  State,  within  the  limits  of  their  authority',  con- 
ferred upon  them,  and  in  the  performance  of  their  duties,  in 
dealing  with  third  persons,  are  the  acts  of  the  State,  and  cannot 
be  repudiated  by  it.°  A  State  in  its  contracts  v*-ith  individuals 
must  be  judged  and  must  abide  by  the  same  rules  which  govern 
similar  cases  between  individuals  ;  and  whenever  such  a  contract 
comes  before  the  courts,  the  rights  and  obligations  of  the  con- 

'  Davis  V.  Gray,  16  Wall.  203;  Hall  294. 
V.  Wisconsin,  103  U.  S.  5  ;  People  v.  *  State  v.  Dent,  18  Mo.  313;  ;>ta'e  v. 

Stephens,  71  N.  Y.  527.  Galveston,   38  Tex.  12;  R.  R.  Co.  v. 

■  Sheets    v.    Selden,   2    Wall   177;  Lindell,  39   Mo.    329.     For  other  in- 

Hodgson   V    Dexter,    1   Cranch,  343;  stances  where  Slates  and  the  United 

Slinchfield  v.  Little,  1  Me.  231;  State  Stales  arc  estopped  see  Index. 
V.  McCauley,  15  Cal.  456.  «  People  v.  Stephens,  71  N.  Y.  527; 

Pierce  v.  U.  S.,  1  Ct.   of  CI.  270;  People  v.  Thayer,  63  N.  Y.  348  ;  Peo- 

Grani  v.  U.  S.,  5  Ct.  of  CI.  72;  Floyd  pie  v.  Jansen.    7  .Tnhns.  331;  U.   S.  v. 

Acceptances,  The,  6  Wall.  666;   Stale  Kiikpalrick,    9  Wheat.  720;  Ilayden 

V.  Hayes,  52  Mo.  578;  Mayor  v.  Mus-  v.    Stjitc  Prison,    1    Sandf.    Ch.    1^5; 

grove,  48  Md.  272;  Mayor  V.  Reynolds,  Supervisors  v.    Brings.    2    Der      26; 

20  Md   1;  Mayer  v.  Eschbach,  18  Md.  Murtin  v.  Supervisors,  29  N.  T.  <555; 

276.  Chase  v.  Saratoga,  33  Barb.  603;   Sii- 

*  State  V.   Crutcher,    2   Swan,  504;  pervisors   v.  Birdsall,   4   Wend.   453; 

Common  wealth  v.  Johnson,  33  Gratt.  People  v.  Greene,  56  N.  Y.  466. 


Ratification.  1265 

tracting  parties  will  be  adjudged  upon  the  same  principles  as  if 
both  contracting  parties  were  private  persons.' 

Where  an  agent  of  the  state,  without  authority,  sells  property 
of  the  state,  and  takes  a  note  in  payment,  the  legislature  may 
ratify  his  act  and  enforce  the  note,  the  same  as  an  individual.' 
The  subsequent  ratification  by  a  State  legislature  of  the  issue  of 
municipal  bonds  issued  without  authority,  is  equivalent  to  original 
authority  and  cures  all  defects  of  power,  if  such  defects  existed, 
and  all  irregularities  in  their  execution.^  Thus,  when  the  money 
or  property  of  an  innocent  person  has  gone  into  the  coffers  of  the 
nation  by  means  of  a  fraud,  to  which  its  agent  was  a  party,  such 
money  or  property  cannot  be  held  by  the  United  States  against 
the  claim  of  the  wronged  or  innocent  party.  A  fii-m  had  bor- 
rowed money  belonging  to  the  government  from  the  cashier  of 
the  sub-treasury.  In  order  to  enable  the  cashier  to  cover  up  his 
violation  of  duty,  and  in  pursuance  of  an  agreement,  one  of  the 
firm  procured  a  bank  officer  to  purchase  gold  certificates,  which 
were  to  be  deposited  in  the  sub-treasury,  to  remain  until  the  sub- 
sequent day.  The  bank  officer  did  so,  and  the  receipt  for  the 
certificates  was  given  by  the  cashier  to  C,  who  indorsed  it  to  the 
bank  officer.  The  receipt  entitled  its  owner  to  receive  gold  cci-- 
tificates  for  those  deposited,  or  their  equivalent,  on  demand. 
The  bank  ofiicer  had  no  knowledge  of  the  plan  of  the  firm  and 
tlie  cashier,  and  the  transaction  he  entered  into  was  a  usual  one. 
Held.,  that  the  goVernment  obtained  no  title  to  tlie  certificates, 
but  was  liable  to  return  their  value  to  the  bank.'' 

'  People  V.  Stephens,  71  N.  Y.  527.  Black  v.  Cohen,  52  Ga.  621;  Duanes- 

"  State  V.  Torinus,   26   Minn.  1;   S.  burg  v.  Jenkins,  57  N.  Y.    177;  Kim- 

C,  37  Am.  R.  395.  ball  v.  Rosendale,  42  Wis.  407;  S.  C. 

3  Keithsburg   v.  Frick,  34   III.  405;  24  Am.  K  431;  Ritchie  v.  County,  22 

Copes  V.  Cliarleslon.  10  Rich.  L.  491;  Wall.  67;  Bradley  v.  County,  05  ?.Io. 

McMillen  v.  Boylcs,  6  Iowa,  304;  Gel-  038;  Wilson  v.  Ilardesty,    1   Md.  Ch 

pccke  V.  Dnbiique,  1  Wall.  220;   Peo-  66;  Shaw  v.  R.  R.,  5   Gray,  180;   Sat- 

ple  V.  IVIilcliell,  35  N.  Y.  551;  Thomp-  terlee  v.  Mathewson,  3  Pet.  380;  Sian- 

8on  V.  County,  3  Wall.  327;    Bass    v.  ley   v.  Colt,  5   Wall.  119;  Richardson 

Columbus,  30  Ga.  845;  Bissell  V.  Jef-  v.   Leland,    2     Pot.    627;    Cro.xall   v. 

fersonville,  24  How.  287;  Campbell  v.  Sliered,  5  Wall.  268;  Watson  v.   Mer- 

Kenosha,5  Wall. 194;  City  v.Lampson,  cer,  8  Pet.  88;  Bridge    Co.  v.    Bridge 

9  Wall.    477;    Steines   v.    County,  48  Co.,  11  Pet.  420. 

Mo.  167;  Knapp   v.   Grant,    27   Wis.  *  Unhed  States  v.  Bank,  96  U.  S.  30. 

147;  Beloit  v.  Morgan,    7  Wall.    619; 
Vol.  I. —80 


1266  The  Law  of  Estoppel. 


CHAPTER  XYIII. 

ESTOPPEL  AS  APPLIED  TO  BOUNDARIES. 

EASEMENTS,       DEDICATION,      ORAL        PARTI  HON,      AWARDS,      ADVERSE 

POSSESSION. 

Section  1129.  The  principle  of  estoppel  is  applicable  to  the 
question  of  boundary/  As  in  case  of  verbal  representation.'  Or 
the  acceptance  of  a  warranty  deed.'  Or  the  making  of  improve- 
ments.* Also  in  case  of  assent  for  twenty  years.*  Numerous 
questions  have  arisen  between  parties  owning  adjoining  lands,  f  i-om 
lixing  tlie  dividing  lines  between  them  or  constructing  division 
fences,  separating  them,  where  the  operation  of  the  doctrine  of 
estoppel  has  been  applied  excluding  the  right  to  change  these,  if 
afterwards  found  not  to  conform  to  the  true  division  lines.  From 
the  variety  of  decisions  on  the  question  of  the  application  of  this 
brancli  of  estoppel  to  the  location  of  boundaries,  it  will  be  neces- 
sary to  refer  to  some  of  the  numerous  cases  on  this  question  in 
order  to  deduce  any  rules  applicable  to  the»subject.  Thus,  an 
enactment  of  the  legislature  establishing  the  boundary  lines  of 
the  lands  of  the  state,  estopped  the  state  from  denying  that  they 
were  the  true  boundaries."  The  practical  location  of  a  boundary 
Ihie  and  long  acquiescence  therein,  or  for  more  than  twenty  years 

'  H.iyc's  V.  Living-ton,     34     ]\Iich.  Cal.  263;  Bradbury  v.   Cony.   59   Me. 

3.S4;  Smitli    v.    ^t.  Loui:?,  21    Mo.  30;  494;  Vosburgh   v.    Teator,   33   N.  Y. 

Corkhill  V.    LandcTs,    48  Barb.    318;  063. 

Smith   V.   McNamara,    4    Laos.   169;  ^  Stanwood  v.  McCk'llan.48  Mc.  37"); 

Lavcrly  v.  Moore,  33  Barb.  347;  Reed  Spiller  v.  Scribner,  36  Vt.  245. 

V.  McCourt,  41  N.  Y.  435;  Raynor  v.  ^  Hodiics  v.  Eddy,  38  Vt.  337. 

Timcrson,    51    Barb.    517;    Reed    v.  *  CorkhiU  v.  Landers,  45  Barb.  218. 

Farr,    35   N.    Y.  113;  Rutherford   v.  *  Reed  v.  Farr,  35  N   Y.  113;  Stale 

Tracy,  48  Mo.  335;  Davenport  v.  Tar-  v.  Boscavven,  32  N.  II.  331. 

pin,  43  Cal.  593;  Kincald   v.  Donnell,  '  Commonwealth  v.  Prop..  10  3Iasa 

51   Mo.    552;    Halloran  v.  Whitcomb,  155. 
43  Vt.   YOU;  People  v.    Plumpke,  41 


Boundaries.  1267 

or  for  a  period  equal  to  that  fixed  by  the  statute  for  gaining  title 
bj  adverse  possession,  is  conclusive  of  the  location  of  the  bound- 
ary line,  on  the  ground  that  it  is  evidence  of  the  correct  location 
of  so  high  a  nature  as  admits  of  no  contradiction,'  Title  to  land 
cannot  be  barred  by  oral  agreement  unless  it  has  been  so  far  acted 
upon,  that  the  parties  cannot  be  restored  to  their  former  position 
or  acquiesced  in  for  sufficient  length  of  time  to  raise  the  presump- 
tion of  a  grant.'' 

§  1130.  The  owner  of  property  cannot  recall  a  declaration  or 
admission  with  regard  to  a  boundary,  on  which  third  persons  have 
relied  in  buying.'  A  proprietor  who  points  out  to  a  settler  on 
land  adjoining  his  own,  a  line  as  the  true  boundary,  acquiescing 
and  assisting  him  in  a  settlement  and  improvements  thereon,  is 
thereby  estopped  from  afterwards  asserting  a  claim  to  the -land 
covered  by  the  improvements,  though  a  subsequent  survey 
proved  it  to  be  his  own  land.'  Thus,  A.  and  D.  owned  adjoining 
lots  in  Q,  city  addition.  D.  had  his  lot  surveyed  by  the  surveyor 
who  hiid  out  the  addition,  and  commenced  to  build  his  house  up 
to  the  western  boundary  line.  A.,  relying  upon  D.'s  survey 
measured  off  twenty-live  feet  westward,  and  built  up  to  his  west- 
Reed  V.  Farr,  35  N.  Y.  113;  Bald-  =  Terry  v.  Chandler,  16  N.  Y.  354; 
win  V.  Brown,  16  JSl.  Y.  359;  Watts  v.  McAtfeity  v.  Conover,  7  Ohio  St.  99; 
Gauahl,  34  Ga.  290;  Hibbard  v.  Baldwin  v.  Brown.  16  N.  Y.  359; 
Stearns,  86  111.  35:  Trussell  v.  Lewis,  Carleton  v.  Redington,  21  N.  H.  291; 
13  Neb.  415;  S.  C,  42  Am.  R.  767;  Roberlson  v.  McNeal,  12  Wend.  578; 
Ri^ckwell  V.  Adams,  6  Wend.  468:  Ormsby  v.  Ihmseu,  34  Pa.  St.  462; 
Pierson  v.  Mosher,  30  Barb.  81;  Clark  v.  Wethey,  19  Wend.  320;  Clark 
George  v.  Thomas,  16  Tex.  74;  State  v.  Baird,  9  N.  Y.  183. 
V.  Groendyke,  38  N.  J.  L.  144;  McCoy  '^  ii\)e-dv  v.  Walker,  1  Head.  166; 
V.  Vance,  28  Pa.  St.  149;  Gray  v.  Louks  v.  Kenniston,  50  Yt.  116; 
Courvillou,  12  La.  An.  730;  Holmes  v.  Brown  v.  Allen,  43  Me.  590;  Knapp 
Jersey  City,  12  N.  J.  E.  299;  Ctfte  v.  v.  Marlboro,  29  Vt.  282;  Richardson 
Trapp,  49  Mich.  59;  O'Donnell  v.  v.  Chickering,  41  K  H.  380;  Fly  v. 
Kelsey,  ION.  Y.  412;  S.  C,  4  Saudf.  College,  2  Sneed,  689;  Robinson  v. 
202  ;  Brown  v.  Leete,  6  Sawyer,  332;  Justice,  2  Pa.  St.  19. 
Coleman  v.  Smith,  55  Tex.  254;  Brown  •*  Parker  v.  Barker,  2  Met.  423;  Van 

V.  Goddard.  13  R.  L  76;  Stockham  v.  Valkenburg  v.  Huff,  1  Nev.  142;  Ac- 
Browuiug  18N.J..E.  390;  Davis  V.  ton  v.  Doolittle,  6  Mo.  App.  323; 
Smith,  61  Tex.  18;  3Iain  v.  Killenger,  Rutherford  v.  Tracy,  48  Mo.  325;  Mc- 
90  Ind.  165;  Hartuug  v.  White,  59  Namara  v.  Seatou,  82  111.  498;  Jordon 
Wis.  285;  Johnson  v.  Brown,  63  Cal.  v.  Deatou,  23  Ark.  704. 
399. 


12G8  The  Lavnt   of  Estoppel. 

ern  buiindarj,  tinisliing  liis  house  months  before  D.  finished 
his,  and,  bj  permission,  used  D.'s  fence  for  tlie  eastern  wall  of 
]jis  coal  shed.  Eight  years  afterwards  A.  discovered  that  D. 
encroached  upon  his  lot  four  inches,  and  commenced  au  action 
for  ejectment.  These  facts  constituted  an  estoppel,  and  that  A.'s 
ignorance  of  the  true  line  M'as  immaterial,  the  question  being  one 
of  estoppel  by  acts  in  jjais.^ 

The  locution  on  the  ground  of  boundaries  described  in  deeds 
is  a  question  of  fact."  "Where  the  description  in  a  deed  desig- 
nates a  piece  of  land  as  that  conveyed,  the  description  cannot 
be  departed  from  by  parol  evidence  of  intent  or  acquiescence  in 
another  boundary,  unless  such  an  adverse  possession  is  shown,  as 
is  in  itself  a  bar  to  an  ejectment.'  When  the  disputed  or  uncer- 
tain line  is  fixed  and  adopted  by  parol  agreement  of  the  parties, 
it  is  binding  upon  them,  their  heirs,  &c.,  not  by  way  of  transfer 
of  title,  but  by  wa}'  of  estoppel.^ 

§  1131.  The  presumption  in  favor  of  a  boundary  line,  acqui- 
esced in  by  adjoining  proprietors,  is  strengthened  by  lapse  of 
time,  yet  there  is  no  period  fixed  by  statute  which  will  render  the 
presumption  conclusive.  Each  case  must  furnish  its  own  rulu, 
accoi'ding  to  its  own  circumstances,  modifying  the  conclusiveness 
of  the  presumption.^  And  where  adjoining  owners  treat  a  line 
as  the  division  line,  and  occupy  with  reference  to  it  for  a  period 
of  fifteen  years,  although  it  was  not  in  the  first  instance  estab- 
lished by  them  by  agreement,  it  becomes  the  true  line,  as  much 
as  though  it  were  established  and  evidenced  by  an  original  sur- 
vey." Where  two  adjacent  owners  had  occupied  for  eleven  years 
on  either  side,  up  to  a  fence  as  a  division  line,  and  one  of  them 
had  gone  on,  with  the  acquiescence  of  the  other,  and  made 
expensive  improvements  upon  the  land  in  his  possession,  it  was 
held  that  the  other  was  estopped  from   setting  up  the  true  line 

'Acton   V.    Dooley,   6   Mo.      App.  ^  Cutlc-r  v.  Callisou.  73111.  113;  Tur- 

323.  ner  v.    Baker,    U   Mo.   218;  Kerr   v. 

»  Madden    v.  Tucker.    76  Me.  367;  Wright,    37   Pa.  St.  196;  Vo.sbiug   v. 

Williston  V.  Morse,  10 Met.  17;  Abbott  Teator,    32    X.    Y.    o61 ;  Laverty  v. 

V.  Abbott.  51  Me.  575;  Tasker  v.  Cil-  Moore,  33  N.  Y.  658. 

ley,  59  N.  II.  575;  Tebbetis  v.  Esles,  s  Laverty   v.  Moore.  33  X.   Y.  658; 

52  Me.  566.  Floyd  v.  Rice,  28  Tex.  341 ;  McNainara 

3  Hubbell  V.  McCuUoch,  47  Barb.  v.  Seaton,  82  111.  498. 

287.  « Davis  v.  Judge,  46  Vt.  655. 


BOUNDAIIIES.  1269 

against  the  one  who  had  thus  expended  his  money  ;  and  the 
chancellor  remarked,  in  giving  the  opinion,  '•  perhaps  a  grant 
might  be  presumed  within  twenty  years.'"  Where  land  was  sur- 
veyed with  a  view  to  partition  among  heirs,  and  the  heirs  con- 
veyed the  land  according  to  the  boundaries  of  such  survey,  and 
the  husband  of  one  of  the  heirs  afterwards  purchased  an  adjoin- 
ing lot,  which  included  a  portion  of  the  survey,  it  was  held  that 
the  heirs  were  estopped  to  deny  the  boundaries  so  fixed,  and  that 
the  husband  was  estopped  to  claim  so  much  of  the  land  surveyed 
as  was  included  in  the  deed  to  him.^  Where  A.  was  about  to 
purchase  a  lot  of  land  which  adjoined  B.'s,  and  was  bounded  by 
it,  and  not  knowing  tlie  boundary  line,  applied  to  B.  to  point  it 
out  to  him,  who  did  so,  knowing  that  the  inquiry  was  made  with 
a  view  of  purchasing  it.  A.  having  purchased  it,  relying  on  the 
statement  of  B.,  it  was  held  that  B.  was  estopped  to  deny  that 
tl.ie  line  thus  pointed  out  by  him  was  the  true  one.^  And  this 
claim  is  recognized  for  many  years  by  the  adjoining  land  owners, 
he  may  maintain  a  bill  to  enjoin  a  trespasser  on  such  land,  and 
the  latter  cannot  set  up  that  the  line  is  not  the  true  boundary." 

§  1132.  A  grantor  is  bound  in  his  private  capacity  to  a 
boundary  line  settled  by  him  as  trustee.  He  cannot  acknowledge 
a  line  in  one  capacity,  and  be  permitted  to  deny  it  in  another. 
The  government  of  the  United  States,  as  well  as  individuals,  may 
be  bound  by  estoppel.  For  instance,  in  the  case  of  a  mistake  in 
the  survey,  and  the  parties  building  on  the  land,  nor  can  the 
United  States  object  to  a  boundary  line  in  an  approved  survey,  if 
they  have  not  appealed  from  the  decree   approving  the  survey.' 

'  McCormick  v.  Barnum,  10  Wend.  "■  Root  v.  Crook,  7  Pa.  St.  378;   Le- 

104;  Perkins  v.  Gray,  3  S.  &  R.  327;  beau  v.  Bergeron,  14  La.  An.  489. 
Fahey  V.  jMarsli,  40  Mich.  230;  Wood-         »  gtanley  v.   Green,    12    Cal.    148; 

ward  V.  Tudor,  81  Pa.  St.  382;  Hagey  Merriv.-ether  v.  Larmon,  3  Sneed,  447; 

V.  Detwiler,  .35  Pa.  St.  409;   Sneed  v.  Spears  v.  Walker,  1  Head,  1G6;  Spiller 

Osburn,  25    Cal.    619;  Joice    v.  Wil-  v.   Scribener,  36  Vt.  245;  Ricliardsou 

Hams,  27  Mich.  332;    iMayor  v.    Rice,  v.  Cliickering,  41  JST.  H.  380;  Grills  v. 

57   Mo.  384;  Columbet  V.  Pachcco,48  Graham,     6    Litt.    450;     Hallorau  v. 

Cal.  395;  Holton  v.  Whitney,  30  Vt.  Whitcorab,    43   Vt.    312  ;    McGee    v. 

405;  Thomas  V.  Pallis,   56   Mo.    211;  Stone,  9  Cal.  600;  Louks  v.  Kenniston, 

Davis  V.  Judge,  56  Vt.  655;  Adams  v.  50  Vt.  116. 

Rockwell,  16  "Wend.  285;  Lavarty  v.  "  King  v.  Mabry,  3  La.  Ann.  237. 

Moore,  32  Barb.  347;  S.  C,  33  N.  Y.         *  R.  R.  v.  Shurmeier,  7  Wall.  272, 

658  Bates  v.  R.  R.,  1  Black,  204;  R.  R.  v. 


1270  The  Law  of  Estoppel. 

A  parol  adjustment  of  boundaries,  executed  at  the  time  and 
acquiesced  in  subsequently,  will  be  as  effectual  as  if  it  were  by 
deed,  and  estops  the  parties  from  recurring  to  or  enforcing  their 
original  rights.  The  estoppel  of  a  parol  designation  of  bounda- 
ries arises  from  the  same  cause  which  gave  rise  ta  that  of  a  feoff- 
ment, with  livery  of  seizin,  both  having  their  origin  in  the 
ditReulty  of  having  recourse  to  written  instruments  in  unsettled 
countries,  and  a  rude  and  primitive  social  condition.'  It  is  too 
late  to  correct  an  error  in  the  boundary  line  after  a  building  has 
been  put  up,  which  would  have  to  be  taken  down  if  the  error 
were  corrected."  An  act  of  the  legislature  may  operate  as  an 
estoppel,  in  regard  to  boundaries,'  but  in  North  Carolina  it  is 
held  that  estoppels  do  not  bind  the  State." 

§  1133.  A  party  is  estopped  to  deny  the  line  between  his  own 
and  the  adjoining  land  to  be  the  true  line,  if  he  has  sold  and  con- 
veyed land  up  to  such  line,  has  pointed  it  out  as  the  true  line,  and 
has  induced  the  defendant  to  purchase  up  to  such  line.*  If  a 
disputed  boundary  line  has  been  fixed  and  settled  by  agreement 
between  the  parties,  and  the  defendant,  i-elying  on  such  settle- 
ment, has  built  upon  the  land  so  decided  to  be  his,  without  any 
notice  of  dissent  from  the  plaintiff  in  regard  to  the  lino  thus 
established,  the  plaintiff  will  be  estopped  from  denying  that  such 
line  was  the  true  boundary  of  their  respective  lott;."  An  ac(pii- 
escence  by  a  party  in  the  dividing  line  between  adjoining  estates 

R.  R.,  26 Minn.  81;  Lindsay  V.  Haines.  Boring,  44  Tex.   256;  Rutlicrford  v. 

2  Black,  554.  Tracy,  48  Mo.  325:  Watson  v.  Hewitt, 

'  Clarii  V.  Lockwood,  21   Cal.  220;  45  Tex.  472;  Wendell  v.  Van  Rensse- 

Malioney  v.  Vanwiukle,  21  Cal.  552;  lacr,  IJolins.  Cli.  854;  Scoby  v.  Sweat, 

Mott  V.  Smith,   16  Cal.   580;  Fossat's  28  Tex.  713;  Page  v.  Aruim,  29  Tex. 

Case,  2  Wall.  OU);  Alviso  v.  U.  S.,  8  58;  Heffner  v.  Downing,  59  Tex.  576; 

Wall.  837.  Houston  V.  Sueed,  15  Tex.  310;  George 

""  Van  Valkenburg  v.  Huff,  1  Nev.  v.  Tljomas,  16  Tex.  89. 

142;    Dement   v.   Williams,    44   Tex.  ^  Candler  v.  Lundsford,  4  D.  &  B. 

158;  Singleton  v.  White,side,  5  Yerg.  407. 

18.  ^  Richardson  v.   Chickering,  41  X. 

3  Willis  V.  Swartz,  28  Pa.  St.  413;  H.   880;  Lonks  v.  Kcnniston,  50  Vt. 

McCormick    v.    Barnuni,    10   Weml.  116. 

Ill;  Robinson  v.  Justice,  2  Pa.  St.  22;  «  Corkhill  v.  Landers.  44  Barb.  218; 

Carry.  Wallace,  7  Watts,  400;  Storrs  Stanwood  v.   McClellan,  48  Me.  275; 

V.  Barker,  6  Johns.  Cli.  167;  JIcKelvy  Cooms   v.  Cooper,  5  3Iinn.  254;  Wil- 

V.  Truby,  4  W.  &  S.  324;   Harrison  v.  liame  v.  Montgomery,  16  Hun,  50. 


Boundaries.  1271 

may  conclude  a  party  by  those  boundaries  as  an  admission, 
although  not  constituting  a  technical  estoppel/  Where  two 
neighboring  owners  of  real  estate  have  agreed  upon  a  boundary 
line  between  their  farms,  and  in  accordance  therewith  cultivate 
their  respective  shares,  .each  will  be  estopped  from  recovering 
against  the  other  in  trespass  in  contravention  of  the  agreement, 
but  not  in  ejectment." 

§  1134.  It  has  been  held  that  a  line  agreed  upon,  or  a  division 
fence  constructed  by  parties,  if  the  same  were  done  under  a  nn's- 
take,  and  the  true  line  were  afterwards  to  be  ascertained,  might 
be  corrected.'  Thus,*  where  the  parties  intending  to  establish 
the  true  division  line  between  them,  fixed  the  bounds  indicating 
this  line,  and  occupied  their  lands,  accordingly  for  more  than 
twenty  years.  When  the  tenant,  who  had  purchased  of  the 
original  owner  on  one  side  of  the  line,  was  about  to  make  the 
purchase,  he  inquired  of  the  other  owner  as  to  the  land,  and  was 
told  by  the  latter,  that  he  did  not  own  beyond  the  line  above 
mentioned.  The  tenant  thereupon  purchased  and  entered  upon 
the  land,  filled  it  up,  erected  fences  and  buildings  upon  it,  in  the 
presence  of  the  otlier  owner,  who  frequently  pointed  out  the  line, 
and  never  objected  to  the  acts  of  the  tenant,  nor  gave  him  any 
notice  that  he  claimed  the  land.  It  was,  afterwards,  by  the  decis- 
ion of  another  case,  ascertained  tliat  the  line  agreed  upon  and 
occupied  was  not  the  true  line,  and  the  party  who  had  agreed  to 
it  brought  an  action  against  the  tenant  to  recover  the  strip  of 
land  between  the  true  and  agreed  line.  And  the  court  held,  that 
he  was  not  estopped  by  these  several  transactions,  because  the 
line  was  agreed  upon  in  good  faith,  under  a  mistake  of  facts,  and 
it  was  now  ascertained  where  the  true  line  was.  The  party  made 
no  declaration  contrary  to  his  honest  belief  at  the  time,  or  with 
any  intention  to  deceive  the  tenant.  The  court,  moreover,  stated 
this  broad  proposition,  which  certainly  is  apparently  at  variance 

1  Donnell  v.   Kclsey,  10  N.  Y.  412;  v.  Brown,    16   N.  Y.   359;  Russell  v. 

Sheldon  V.  Perkins,  32  Vt.  550.  Maloney,    39   Vt.    579;    Francois    v. 

^  Dewey   v.    Bordwill,  9  Wend.  65;  Malouoy,  56  111.  39;  Clark  v.  Hulsey, 

Stanwood  v.  McClellan,  48  Me.  275.  54  Ga.  603. 

3  Proprietor   v.    Prescott,    7  Allen,  "  Brewer    v.    R.    R,.  5  Met.    478; 

494;  Thayer  v.  Bacon,  3  Allen,  163;  Cook  v.  Babcock,  11  Cosh.  216. 
Coon  V.  Smith,  29  N.  Y.  392;  Baldwin 


1272  The  Law  of  Estoppkl. 

with  more  than  one  of  the  propositions  contained  in  wliat  has 
ah-eady  been  said  :  "  A  party  is  not  to  be  estopped  to  prove  a 
legal  title  to  his  estate  by  any  misrepresentation  of  its  locality, 
made  by  mistake,  without  fraud  or  intentional  deception,  although 
another  party  may  be  induced  thereby  to  purchase  an  adjoining 
lot  the  title  to  which  may  prove  defective." 

§  1135.  If,  for  instance,  the  line  between  two  adjacent  owners 
be  in  dispute,  and  the  parties  refer  to  arbitrators  to  determine  the 
same,  who  hear  and  award  upon  the  subject,  the  several  owners 
will  be  bound  to  conform  to  such  award.'  But  while  the  award 
of  arbitrators  as  to  such  line  would  be  binding  upon  the  parties 
to  it,  no  award  as  to  the  title  to  an}-  part  of  such  lands  would  be 
binding."  A  mere  agreement,  though  a  mutual  one,  to  employ  a 
common  agent  to  run  a  linq  and  set  up  the  boundaries  between 
two  proprietors  would  not  estop  either  party  from  showing  an 
error  or  mistake  in  this  line.'  So,  where  the  deeds  of  the  p.'irtics 
called  for  certain  monuments,  not  then  in  existence,  or  a  certain 
line  which  had  not  been  i-un  out  on  the  face  of  the  earth,  and  the 
parties  came  together  and  fixed  the  monuments,  or  agreed  upon 
where  the  line  should  run,  they  would,  if  it  was  followed  by 
occupation,  be  bound  by  their  agreement,  and  estopped  from 
claiming  another."  The  distinction  between  these  classes  of  cases 
is,  that  in  the  one,  the  parties,  by  mistake,  agree  upon  a  line 
where  their  mistake  can  be  corrected,  and  the  true  line  ascertained. 
In  the  other,  they  simply  make  that  certain  which  had  never 
before  been  determined.  Tims,  where  the  deed  referred  to  a 
certain  line  not  ascertainable  by  existing  bounds,  or  known  monu- 

>  Goodriflge  v.  Dustin.  5  Met.  3G3;  v.    Thomas,    16   Tex.    74;     Davis  v. 

Whitney  v.    Holmes,    15  Mass.    152;  Raiusfoid,  17  iMass.  212;   Mciiwetlier 

Kellogg  V.  Smith,  7  Cash.  315.  v.  BaiiDon,  3  Sueed,   447;  Dudley   v. 

2  Vosl.urgh  V.  Teator,  33  N.Y.  561;  Elkins.  39  X.  IT.  78;  Browning  v.  M- 
Jacksou  V.  Dy.^ling.  2  Cai.  198;  Rob-  kinsoii,  40  Tex.  605;  Jackson  v. Ogden, 
bertson  v.  McNeil,  12  Wend.  578;  7  Johns.  245;  Bobo  v.  Redmond,  25 
Terry  v.  Ciiandlcr.  16  N.  Y.  354;  Ohio  S.  115;  Waterman  v.  Johnson, 
Davis  V.  Townsend,  10  Barb.  333;  13  Pick.  267;  Makepeace  v.  Bancroft, 
Sellick  V.  Adams,  15  Johns.  197.  12  Mass.  469;    Rockwell  v.  Adams,  6 

3  Thayer  v.  Bacon,  3  Allen,  164;  Wend.  468;  Kellogg  v.  Smith,  7  Gush. 
Russell  v.  Maloney,  39  Vt.  579;  Doe  382;  Lerned  v.  Morrill,  2  N.  H.  198; 
V.  McCidlongh,  1  Kerr  (N.  B.)466.  Stone  v.  Clark,  1  Met.  378. 

*  .Mull  V.  Ormc,  67  Ind.  95;  (leorge 


Boundaries.  1273 

ments,  the  adjoining  owners  agreed,  that  certain  existing  marks 
or  monuments  should  indicate  where  the  line  was,  and  after  that, 
occupied  each  to  that  line  for  a  considerable  length  of  time. 
The  court  held  the  parties  bound  and  estopped  by  this  as  the 
true  line.  Among  the  cases  referred  to  by  the  court,  was  a  class 
where  the  parties,  in  fixing  the  location  of  their  lands,  agreed 
upon  a  certain  line  between  them,  if  followed  by  an  occupancy, 
will  bind  them  by  such  agreement,  if  the  line  thus  fixed  had 
previously  been  ambiguous  and  imcertain."  Where  the  parties 
settled  a  disputed  line  by  agreement,  and  occupied  under  it,  it 
estops  them."  Where  the  owners  of  adjoining  lands  have  agreed 
upon  or  acquiesced  for  a  considerable  time  in  the  location  of  a 
division  line  (boundary)  between  their  lands,  although  it  may 
not  be  the  true  line  according  to  the  calls  of  their  deeds,  they 
are  thereafter  precluded  from  saying  it  is  not  the  true  line.  "  The 
division  line  when  thus  established  attaches  itself  to  the  deeds  of 
the  respective  parties."  If  by  a  mistake  of  the  parties  "  one 
deed  is  in  that  manner  made  to  include  more  than  the  calls  of  the 
deed  would  actually  require,  the  grantee  of  the  deed  holds  the 
excess  by  the  same  tenure  that  he  holds  the  main  body  of  the 
land. 

§  1136.  If  there  is  no  way  of  ascertaining  the  true  line,  and 
the  parties  agree  upon  one,  and  mutually  enter  upon  the  occu- 
pancy of  their  lands  in  conformity  to  it,  they  make  that  the  line 
and  are  mutually  bound  by  it."    Courts  have  held  that  parties  who 

1  Adams  v.  Rockwell,  16  Wend.  285;  45  Pa.  St.  495  ;  Holtou  v.  Whitney, 
Jaekson  v.  Ogden,  4  Johns.  140;  30  Vt.  405;  Davis  v.  Smith,  61  Tex. 
Dibble  V.  Rogers,  13  Weud.  536;  Chew  18;  Main  v.  Killenger,  90  Ind.  165; 
V.  Morion,  10  Watts,  331;  Gray  v.  Harlung  v.  White,  59  Wis.  285;  John- 
Berry,  9  N.  H.  473;  Orr  v.  Hadley,  36  son  v.  Brown,  63  Cal.  399. 
N.  H.  575;  Lindsay  v.  Springer,  4  ^  Smith  v.  Hamilton,  20  jMich.  438; 
Harring.  547;  Rockwell  v.  Adams,  6  Creque  v.  Sears,  17  Hun,  123  ;  Joyce 
Wend.  467:  Terry  v.  Chandler,  16  v.  Williams,  26  Mich.  332;  Davis  v. 
N.  Y.  354  ;  Daggett  v.  Willcy,  6  Fla.  Townsend,  10  Barb.  333;  Knowlcs  v. 
482;  Creque  v.  Sears,  17  Hun,  123;  Toothaker,  58  Me.  174;  Richards  v. 
Jackscm  v.  Van  Corlear,  11  Johns.  Coon,  13  Neb.  415  ;  Kipp  v.  Norton, 
123;McCormick  v.  Barnum,  10  Wend.  12  Wend.  127;  Houston  v.  Sneed,  15 
104;  Gilchrist  v.  McGhee,  9  Yerg.  455;  Tex.  807. 

Jackson  v.  Murray,  7  Johns.  5;  Fly         ^  Russell  v.   Maloney,   39  Vt.  580; 

V.  College,  2  Sneed.  689;  Browning  v.  Yates  v.  Shaw,  24  111.  367;  McCormick 

Atkinson,  46  Tcx.685 ;  Gratz  v.  Beates,  v.  Barnum,  10  Wend.  104;  Jackson  v. 


1274 


Tjie  Law 'of  Estoppel. 


agree  upon  a  line  by  mistake,  M'onld  not  be  estopped  to  claim  np 
to  the  true  lino,  although  the  other  party  un\y  in  the  nieantiuic 
have  erected  buildings  or  incurred  other  expense  upon  the  land 
which  he  claims.'  While  other  courts,  under  similar  circum- 
stances, held  that  it  would  work  an  estoppel,  if  the  party  making 
the  improvement  would  otherwise  lose  the  benelit  of  the  same.'' 
And  again,  such  an  agreement  was  held  to  he  ou\y  prima /"acle 
evidence  of  what  was  the  true  line,  but  not  conclusive.''  If 
adjacent  proprietors  fix  a  boundary  line  between  them,  in  which 
they  both  acquiesce,  and  to  which  they  occupy  for  a  long  period, 
"rarely  less  than  twenty  years,"  it  is  conclusive,  and  either  party 
is  estopped  from  offering  any  evidence  to  the  contrary,  "  unless 
their  acquiescence  has  continued  for  a  sufficient  length  of  time  to 
become  thus  conclusive,  it  is  of  no  importance,"^  If,  after  an 
agreement  as   to  the  boundary  one  of  the  parties  were  to  see  a 


Van  Corleur,  11  Johns.  123;  Perkins 
V.  Gray,  3  S.  it  R.  327;  Jackson  v. 
Ogdcn,  4  Johns.  143;  Hagey  v.  Det- 
weilur,  35  Pa.  St.  412;  Jackson  v. 
Gardner,  8  Johns.  406;  Jackson  v. 
Suflfern,  12  Wend.  421;  Turner  v. 
Baker,  G4  Mo.  218;  Burdick  v.  Hewley, 
23  Iowa,  515  ;  Taylor  v.  Zepp,  14  Mo. 
482;  Morse  v.  Connelly,  50  Cal.  295; 
Hdyes  v.  Livingston,  34  Mich.  384; 
Biggins  V.  Ciuimplin,  59  Cal.  113; 
Cooper  V.  Yierra,  59  Cal.  282;  Sneed 
V.  O'Shorn,  25  C<il.  619;  Blair  v. 
Smith,  IG  ]\Io.  279. 

'  Galloway  v.  Brown,  16  Ohio,  431 ; 
Proprietors  v.  Prescott,  7  Allen,  496; 
Singleton  v.  Whitesides,  5  Yerg.  18 ; 
Lebeau  v.  Bergeron,  14  La.  Ann.  489  ; 
Laverty  v.  ]\Ioore,  32  Barb.  347; 
Meyers  v.  Johnson,  15  Ind.  261; 
Morrison  v.  Howell,  37  Pa.  St.  58; 
Rockwell  V.  Adams,  16  Wend.  285; 
Smith  V.  McAllister,  14  Barb.  434; 
Sneed  V.  Osborn,  25  Cal.  619;  Lindell 
V.  McLaughlin,  30  Mo.  28:  Faught  v. 
Holway,  50  :\Ie.  24 ;  McCoy  v.  Hance, 
28  Pa.  St.  145;  McCormick  v.  Barnum, 
10  Wend.  104;  Kip  v.  Norton,  12 
Wend.  107;  Hunt  v.  Johnson,  19  N. 


Y.  279;  Pierson  v.  :\rosher,  30  Barb. 
81;  Baldwin  v.  Brown,  16  N.  Y.  389; 
Hagey  v.  Detweiler,  35  Pa.  St.  409; 
Perkins  v.  Gay,  3  S.  &  11.  331 ;  Boyd 
V.  Graves,  4  Wheat.  413;  Jackson  v. 
Ogdcn,  4  Johns.  142;  Blair  v.  Smith, 
16^  Mo.  273;  Philly  v.  Sanders,  11 
Ohio  St.  490;  Laverty  v.  Moore,  33  X. 
Y.  658;  Sheldon  v.  Perkins,  37  Vt. 
550;  Knowles  v.  Toothaker,  58  Me. 
172;  Reed  v.  Farr,  35  K  Y.  117; 
RaM iin  s  Case,  4  Coke,  52;  Dibble  v. 
Rogers,  13  Wend.  536;  Rich  v.  Rich, 
16  Wend.  663;  Jackson  v.  NcConiiell, 
12  AVend.  421;  Kellogg  v.  Smith,  7 
Cush.  381. 
5  Corkhill  v.  Landers.  44  Barb.  228. 

*  Gove  V.  Richardson,  4  jMc.  327. 

♦  Reed  v.  Farr,  35  N.  Y.  113;  Bald- 
win V.  Brown,  16  N.  Y.  359;  Doe  v. 
McCullough,  1  Kerr  (N.  B.)  460; 
Sneed  v.  Osborn,  25  Cal.  6l9;  Boyd  v. 
Graves,  4  Wheat.  513;  Proi)rietors  v. 
Prescott,  7  Allen,  496;  Case  v.  llalghr, 
3  AVend.  652;  Sheppard  v.  Hunt,  4  X. 
J.  E.  277;  Bi<;gins  v.  Champliu,  59  Cal. 
113;  Reed  v.  McCourt,  41  N.  Y.  441; 
Columbet  v.  Pacheco,  48  Cal.  395. 


Boundaries.  1275 

third  party  take  a  convejance  of  the  adjacent  land  for  a  valuable 
consideration  according  to  the  monuments  agreed  upon,  he  is 
estopped  to  claim  adversely  to  such  boundary.' 

§  1137.  It  has  been  held  that  an  admission  by  a  party  of  a 
mistaken  line  for  the  true  line,  has  no  legal  effect  upon  his  title.* 
An  element  of  estoppel  has  been  recognized  as  applicable  to  cases 
where  the  line  had  been  agreed  upon  by  mistake,  and  could  be 
ascertained.  "If  during  such  acquiescence,  expensive  improve- 
ments, by  the  erection  of  buildings  or  otherwise,  had  been  made 
by  the  occupant  of  the  premises  in  dispute,  the  owner  would  have 
been  estopped  from  setting  up  the  true  line."  So  that,  if  this  be 
law,  it  is  not  the  agreement  of  the  parties,  nor  the  occupying 
under  it,  nor  the  good  faith  with  which  this  was  done,  but  the 
amount  of  money,  whether  much  or  little,  which  the  tenant  may 
have  expended  upon  the  land. 

§  1138.  A  state  as  well  as  an  individual  may  be  bound  by  the 
acts  of  its  legislature,  as  where  by  an  act  it  fixes  the  boundaries  of 
certain  lands,  it  estops'  the  state  froin  denying  the  boundaries  ; 
and  where  the  legislature  grants  to  a  county,  city  or  town,  forever 
the  use  of  certain  lands  for  the  benefit  of  the  grantee,  it  ])arts 
with  all  interest  in  the  lands,  and  is  estopped  from  chaiming  them 
under  a  forfeiture  of  condition  broken  before  the  grant  is  made. 
Tliere  may  be  an  estoppel  in  jycds  as  to  the  boundary'  line  between 
the  adjoining  proprietors,  although  no  agreement  may  have  been 
made  between  them  as  to  the  location  actually  made  ;  nor  is  it 
essential  that  the  proprietor  claiming  the  benefit  of  the  estoppel 
should  enclose  up  to  the  line.  It  is  sufficient  if  it  would  work  a 
practical  fraud  upon  him  to  allow  the  other  to  disturb  a  location 
made  and  acquiesced  in  by  himself."  To  estop  A.  from  denying 
a  boundary  line,  orally  agreed  upon  between  him  and  13.,  it  is  not 
necessary  that  he  should  have  intentionally  made  false  statements 
to  B.,  by  which  the  latter  was  induced  to  put  improvements  on 
tlie  land,  nor  that  knowing  his  rights  he  should  have  agreed  to  a 
line  by  which  he  relinquished  part  of  his  land  to  B.  But  he  is 
estopped  .where,  understanding  that  there  is  an  uncertainty  about 
the  true  line,  he  agreed  to  the  one  fixed,  and  allowed  B.  to  erect 

1  Colbey  v.  Norton.  19  Me.  412.  »  Liiidell  v.  McLaughlin,  30  Mo.  28; 

«  Crowell  V.  Bebee,  10  Vt.  33.  Hoxie  v.  Clay,  20  Tex.  5S2. 


1276  The  Law  of  Estoppel. 

valuable  improvements,  which  B,  would  lose  but  for  such  estop- 
pel.' If  an  individual  recognizes  and  adopts  a  survey  as  establish- 
ing the  boun(hiries  of  lands  he  is  bound  by  it.^  Where  the  orig- 
inal boundaries  of  private  possessions  have  been  destroyed,  or  are 
unknown,  or  are  not  well  defined,  a  survey  made  by  the  owner 
in  reasonable  conformity  with  the  calls  of  his  title  deeds  or  papers 
is  an  ascertainment  of  the  very  land  owned  by  him,  and  concludes 
him  on  principles  of  public  policy  and  for  the  security  and  repose 
of  others.' 

§  1139.  Practical  location  of  a  boundary  line,  and  acquiescence 
in  for  more  than  twenty  years,  are  conclusive  evidence  of  the 
location  of  the  line  being  proof  of  the  correctness  of  such  location, 
of  so  controlling  a  nature  as  to  preclude  all  evidence  to  the  con- 
trary.* A  description  in  a  deed  of  a  boundary  line  conforming 
to  the  land  conveyed,  cannot  be  departed  from  by  parol  evi- 
dence of  intent,  or  acquiescence  in  another  boundary,  unless  such 
adverse  possession  is  shown  as  is  in  itself  a  bar  to  an  action  of 
ejectment/  Where  a  man,  instead  of  making  and  recording  a 
homestead,  continually  treats,  uses  and  recognizes,  or  holds  out 
to  the  world  as  such  homestead  a  particular  tract  of  land,  forty 
acres,  on  which  he  resides,  and  third  persons  are  influenced  by 
his  actions,  his  wife  cannot  be  allowed  years  afterward  to  change 
the  boundaries  so  as  to  affect  or  impair  a  security  valid  when  it 
was  given."  When  the  recorded  plats  of  adjoining  additions  to  a 
city  represent  a  street  as  located  partly  U]iou  each  of  such  addi- 
tions, and  running  along  the  line  l^etween  them,  with -nothing  to 
indicate  that  there  is  any  land  included  within  the  street  lines  not 
belonging  thereto,  the  owner  of  one  of  such  additions  and  those 
claiming  under  him  are  estopped,  as  against  purchasers  of  lots  on 
the  opposite  side  of  such  street,  who  purchased  for  valueafter  the 

'  Gove  V.  White,  23  Wis.  282;  Dolde  Meigs,   413;   Ho.xie   v.    Clay,  20  Tex. 

V.    Vodiclia,    49   Mo.    98;    Faliey    v.  582. 

Marsh,  40  Mich.  236;   Woodward  v.  ■■  Watt  v.  Ganahl,  34  Ga.  290;  Reed 

Tudor,  81  Pa.  8t.  382.  v.  Farr,  32  N.  Y.  113. 

^  Overton  v.    Cannon,    2  Humph.  '  Hubbell   v.  McCulloch,  47  Barb. 

264.  287. 

3  Yarborough     v.     Aberuathy,     1  «  Thompson  v.    Pickel,    20   Iowa, 

490. 


Dedication.  1277 

plats  w'ere  recorded,  and  without  notice  of  his  rights,  from  assert- 
ing title  beyond  the  actual  center  of  the  street  as  represented.' 

§  1140.  The  ordinary  doctrine  of  estoppel  by  deed  applies  in 
case  of  a  grant  of  an  easement,  so  that  if  a  person  without  title 
professes  to  convey  or  grant  an  easement,  his  conveyance  operates 
by  way  of  estoppel,  if  at  a  subsequent  period  he  acquires  the  fee, 
and  the  subsequently  acquired  estate  is  bound  thereby — the  newly 
acquired  estate  feeds  the  estoppel."  Where  the  owner  of  an 
estate  has  stood  by  and  seen  another  expend  money  upon  an 
adjacent  estate,  relying  upon  an  existing  right  of  easement  in  the 
first  mentiojied  estate,  and  without  which  such  expenditure  would 
be  wholly  useless  and  wasted,  and  has  not  interposed  to  forbid  or 
prevent  it,  equity  will  enjoin  liim  from  interrupting  the  enjoy- 
ment of  such  easement.  So,  where  one  by  parol  grants  a  right  to 
such  easement  in  his  land,  upon  the  faith  of  which  the  grantee 
has  expended  money,  which  will  be  lost  and  valueless  if  the  right 
to  enjoy  such  easement  is  revoked,  equity  will  enjoin  the  grantor 
from  preventing  the  use  of  the  easement.'  An  easement  is  a 
liberty,  privilege,  or  advantage  in  land,  without  profit,  exiating 
distinct  from  an  ownership  of  the  soil.^  Such  a  privilege  or 
liberty,  open  to  the  conununity,  is  a  public  easement,  of  which 
highways  are  the  most  common  instances.  A  highway  may  be 
o'eated  by  legislative  authority,  exercised  either  directly  or 
through  a  municipal  corporation,  authorized  by  its  charter  to  open 
streets,  or  through  general  road  laws,  which  exist  in  most  states, 
empowering  justices  or  county  courts  to  act  upon  the  petition  of 
the  inhabitants  ;  or  it  may  arise  from  a  dedication  of  the  owner. 
Squares,  walks,  streets,  &c.,  may  also  be  the  subject  of  dedication 
to  the  public." 

>  WeLsbrod  V.  H.  K.,  18  Wis.  35;  S.  v.    Boring,    44   Tex.   255;    Dilloa   v. 

C,  20  Wis.  419.  Crook,  11  Bush.  331. 

^  Kowbotham  v.  Wilson,  8  E.  &  B.         *  Pomeroy  v.  Mills,  3  Vt.  379. 
145;   Rawlyn's  Case,  4  Co.  52;  Weale         ^  Dummer  v.  Jersey   City,  20  N.  J. 

v.  Lower,  Polle.  54.  L.  86;  Pella  v.  Scholte,  24  Iowa,  283; 

3  Tarrant  v.  Terry,  1  Bay,  239;  Antones  v.  Eslava,  9  Port.  527;  Han- 
Powell  V.  Thomas,  (5  Hare,  300;  Will-  uibal  v.  Draper,  15  Mo.  634;  Hunter 
iamsv.  Jersey,  1  C.  &  P.  91;  Devon-  v.  Sandy  Hill.  6  Hill,  407;  Post  v. 
shire  v.  Eglin,  14  Beav.  530;  Marble  Pearsol,  22  Wend.  425;  President  v. 
v.  Whitney,  28  K  Y.  297;  Piersou  v,  Indianapolis,  12Ind.  620;  Reynolds  v, 
Cincinnati,  2  Dis.  (O.)  100;  Harrison  Comm'rs,  5  Ohio  St.  204;  Todd  v.  R 


1278  The  Law   of  Estoppel. 

But  a  party  having  once  given  his  free  consent  to  forego  the 
use  of  the  easement,  either  temporarily  or  permanently,  and  suf- 
fered other  persons  to  act  upon  the  faith  of  that  agreement,  or 
consent,  and  to  incur  expense  in  doing  the  very  act  to  which  his 
consent  was  given,  it  is  then  too  hite  for  him,  or  tliose  claiming 
under  liim,  to  retract  such  consent,  or  to  thro\v  on  those  relying 
on  his  good  faith  the  burden  of  restoring  things  to  their  former 
state  and  condition.  This  is  the  just  and  equitable  principle  now 
lirmly  established,  and  it  is  applied  as  well  in  courts  of  hiw  as  in 
courts  of  equity.' 

§  1141.  Dedication  is  the  act  of  devoting  or  giving  property 
for  some  proper  object,  and  in  such  a  manner  as  to  conclude  the 
owner."  It  does  not  operate  as  a  grant,  but  is  in  the  nature  of 
an  estoppel  in  pais,  which  debars  the  owner  from  recovering  it 
back.  In  regard  to  dedication  of  land  to  public  uses,  we  find  it 
elassiiied  as  follows:  statutory  dedications,  and  common  law  ded- 
ications. The  former  are  made  b}'  a  substantial  compliance  witli 
the  statutory  provisions.  Thus,  it  may  be  requisite  that  it  be 
acknowledged  similar  to  a  deed,  and  must  also  be  recorded.  But 
a  common  law  dedication,  may  be  shown  by  acts  of  the  owner 
indicating  an  intention  to  dedicate,  an  acceptance  may  be  shown 
by  user  for  a  long  period,  or  by  its  otticial  recognition  by  the 
constituted  authorities.  A  statutory  dedication  vests  the  estate  in 
the  pul)lic  by  conveyance  or  grant,  while  under  a  common  law 
dedication,  where  there  is  no  express  grant,  to  a  grantee  for  a 
consideration,  it  operates  by  way  of  an  estoppel  hi  j9a/6'  of  the 
owner,  and  not  by  grant,  and  leaves  the  legal  title  in  the  owner. 
An  incomplete  or  defective  statutorj^  dedication,  where  rights  are 
acquired  under  it,  or  when  accepted  by  the  public,  also  operates 
as  a  common  law  dedication.  For  a  full  examination  of  lights 
and  liabilities  under  a  statutory  dedication,  the  learned  j'eader  is 
referred  to  the  able  work  of  Judge  Dillon  on  Municipal  Corpora- 
tions, §§  627-653. 

R  Co.,   19   Ohio   St.   514:   Smith    v.  9  Met.    395;    Morse    v.   Copclaiul,   2 

Hueston,  6  Ohio,   101;   Klinkeuer  v.  Gray,  304;   Curtis  v,.  Noonau,   10  Al- 

School  Dist.,  11  Pa.  St.  444.  len,  4()6;  Vogler  v.  Geiss,  51  .>[d.  407. 

'  Addison  v.Huclv,  2  Gill,  221;  ■Win-  ^  Hunter   v.   Trustees.   G  Hill.  407; 

ter  V.  Brookwell,  8  East,  308;  Li^gins  Connehan  v.   Ford,  9  Wis.  240:  Maii- 

V.  Ingl,  7  Biug.  682;  Dyer  v.  Sanford,  kato  v.  Willard,  13  Minn.  13. 


Dedica'J'ion.  1279 

§  1142.  Ill  order  to  constitute  a  valid  dedication  to  the  public, 
there  must  be  an  intention  to  dedicate.'  Where  the  anitnus  ded- 
icandi  is  establislied,  no  user  for  any  definite  period  by  the  public 
is  necessarj'.  "  No  particular  time  is  necessary  for  a  dedication. 
If  the  act  of  dedication  be  unequivocal,  it  may  take  pKtce  imme- 
diately. For  instance,  if  a  man  build  a  double  row  of  houses 
opening  into  an  ancient  street  at  each  end,  making  a  street,  and 
sells  or  lets  the  houses,  that  is  instantlj'  a  highway.  In  a  case 
Avherc,  without  judicial  proceeding,  or  compensation,  or  solemn 
form  of  conveyance,  it  is  sought  to  establish  in  pais  a  divestiture 
of  the  citizen's  landed  property  in  favor  of  the  public,  the  proof 
ought  to  be  so  cogent,  persuasive  and  full  as  to  leave  no  reason- 
able doubt  of  the  existence  of  the  owner's  intent  and  consent ; 
and  the  conduct  and  acts  relied  on  to  establish  the  intent  should 
be  inconsistent  and  irreconcilable  with  any  construction  except 
such  consent ;  nor  must  there  be  declarations  and  acts  by  the 
owner  inconsistent  with  the  dedication.  It  is  purely  a  question 
of  intention.  To  constitute  a  dedication  of  property  to  public 
use,  there  must  be  an  acceptance  by  the  public.  This  may  be 
evidenced  by  user  for  a  long  period,  or  by  its  official  recognition 
by  the  constituted  autliorities.  The  user  should  be  such  as  to 
indicate  that  the  enjoyment  by  the  public  is  exclusive,  and  not 
subordinate  or   incidental    to    the   convenience    of    the  owner.^ 

•  Woodyer  v.    Haddon,    5   Tauut.  Mansur  v.  State,  60  lud.  357;  Jennings 

125;    Poolo  V.    Iliisliinson,    11  M.   &  v.  Tisbury,  5  Grra3%  73;  State  v.  New 

W.  827;   Tupper  v.  Hudson,  46  Wis.  Boston,    11    N.    H.    413;    Mansur  v. 

646.  Haughey,  60  Ind.  364;  Marcy  v.  Tay- 

■^  Hayden  v.  Attleborougb,  7  Gray,  lor,  19  111.  634;   Waugh  v.  Leech,  28 

338;   Mankato  v.    Warren,  20   Minn.  111.  488:   Mclutyre   v    Storey.   80  111. 

.144;    Kamihun  v.  Halfman,   58  Tex.  127;  Morgan  v.  E.  R.,  96  U.  S.  716; 

551;  Braker  v.  Ry.  Co.,  29  Minn.  41;  President  v.  Indianapolis,  12  Ind  620; 

Hall  V.  Baltimore,  56  Md.  187;  Mauok  Pennington  v.  Willard,  1  R.  I.  93;  Cin- 

V.  Stale,  66   Ind.  177;   Tupper  v.  Hu-  cinnati  v.White,6  Pet.435;  Logausport 

son,  46  Wis.  646;  Brinck  v.  Collier,  56  v.  Dunn,  8  Ind.  378;  Wilson  v.  Sexton, 

Mo.  165;   Irwin  v.  Dixon,  9  How.  31;  27  Iowa,  15;  Smith  v.   State,  23  N.  J. 

Bayliss  v.  Supervisors,  5  Dillon,  549;  E.   712;    Westfall  v.    Hunter,  8  Ind. 

Kennedy  v.    Le  Van,  23   Minn.  513;  174;  Lee  v.  Lake,  14  Mich.  12;  Onstott 

Henderson   v.  Alloway,  3   Teun.  Ch.  v.  Murray,  22  Iowa,  466;  Council  v. 

688;  Chicago  V.  Johnson,  98  111.  618;  Lithgoe,    7    Rich.   L.    435;     Mander- 

Commonwealth  V.  Belden,  13 Met.  10;  schid  v.  Dubuque,  29  Iowa,  73;  R.   v. 

Hemphill  v.  Boston,  8  Cush.  195;  Chi-  Mellor,  1  B.  &  A.  32;  R.  v.  St.  Bene- 

cago  V.   Thompson,  9  111.  App.  524;  diet,  4  B.  &  A,  447;  State  v.  Catlin,  3 


1280 


The  Law  of  Estoppel. 


The  character  of  an  easement  created  by  implication  or  estop])ol 
is  determined  by  the  circnmstauces  in  which  the  easement  was 
created.' 

§  1143.  A  primary  condition  of  every  valid  dedication  is  that 
it  shall  be  made  by  the  owner  of  the  fee,  or  of  an  estate  therein.'"' 
Although  the  assent  of  the  owner  may  be  inferred  fiom  circum- 
stances,^ a  dedication  may  be  made  by  the  equitable  owner,  and 
the  holder  of  the  naked  legal  title  is  bound  to  respect'it.*  It  may 
be  made  b}'  a  municipal  corporation,  nnless  restricted  by  statutes."* 
And  the  same  rule  applies  to  married  women,  as  well  as  to  per- 
sons sui  juris."  And  also  by  an  agent'  of  the  owner.  So  it  may 
be  made  by  an  administrator,*  Parties  claiming  under  one  who 
is  bound  by  a  dedication  are  likewise  bound  by  the  same  estoppel.' 

§  11-44.  A  dedication   may  be   m;ide   by  parol,'"  without   any 


Vt.  530;  .AIcKee  v.  St.  Louis,  17  Mo. 
184i  Sket'u  V.  Stothart,  29  La.  Ann. 
630;  Pierpont  v.  Harrisouville,  9  W. 
Va.  215;  Siirauka  v.  Allen,  2  Mo. 
App.  387. 

'  Steele  v.  TiCfany,  13  R.  I.  568. 

•^  Po.st  v.  Pearsall,  20  Wend.  442; 
Wood  V.  Veal,  5  B.  &  A.  454;  Baugan 
V.  Maun,  59  111.  492;  Irwin  v.  Dixon, 
9  How.  10;  Hoole  v.  Att'y  Gen'rl,  22 
Ala.  190;  Lee  v.  Lake.  14  Mich.  12; 
Leland  v.  Portland,  2  Oreg.  40;  Por- 
ter v.  Stone,  51  Iowa,  373;  Baxter  v. 
Taylor,  1  N.  &  M.  11;  R.  v.  Bliss,  7 
A.  &  E.  550. 

=*  Winterbottom  v.  Derby,  L.  R.  2 
Exchq.  316;  Davies  v.  Stevens,  7  C. 
&  P.  570;  R.  V.  Barr,  4  Cam]),  16; 
Jarvis  v.  Dean,  3  Bing.  447;  R.  v. 
Hudson,  2  Str.  909;  Harper  v.  Charles- 
worth,  4  B.  &  C.  574. 

*  Williams  v.  Church,  1  Ohio  St. 
478;  Baker  v.  St.  Paul,  8  3Iinn.  491; 
Hannibal  v.  Draper,  15Mo.  638;  .John- 
son V.  Scott.  11  Mich.  232;  Doe  v. 
Attica, 7  Ind.  641;  Ragau  v.  McCoy,  29 
Mo,  356;  Dover  v.  Fox,  9  B.  Mou. 
200;  Banks  v.  Ogden,  2  Wall.  57; 
Sargeant  v.  Bank,  4  McLean,  439. 


^  Boston  V.  Lecraw,  17  IIow.  426; 
State  V.  Woodward,  23  Vt.  1)2;  Wright 
V.  Victoria,  4  Tex.  375;  Canal  Co.  v. 
Hall,  1  M.  &  G.  398;  Green  v.  Canaan. 
29  Conn.  157;  San  Francisco,  v.  Cal- 
derwood,  31  Cal.  585. 

'^  Todd  V.  n.  li.  Co.,  19  Ohio  St. 
514;  Roselterv.  Grant,  18  Ohio,  126; 
Hill  v.  West,  8  Ohio,  225;  R.  R.  Co. 
V.  Crary,  1  Dis.  (O.)  128;  Guynne  v. 
Cincinnati,  3  Ohio,  25  ;  Moore  v. 
]\Iayor,  8  N.  Y.  110;  Smiley  v,  Wright, 
2  Ohio,  514;  Schenley  v.  Cc)nim'r.s,  36 
Pa.  St.  29. 

"  U.  S.  V.  Chicago,  7  IIow.  185; 
Brown  v.  ^Manning,  6  Ohio,  298;  Bar- 
clay v.  Howell,  6  Pet.  4^8;  Wirt  v. 
McEnery,  21  F.  R.  233. 

**  Logaiisport  v.  Dunn,    8  Ind.  378. 

^  Steam  Engine  Co  v.  Steamship 
Co..  12  R.  I.  348;  Ewing  v.  Desilver, 
8  S.  &  R.  92. 

10  Robertson  v.  Wellsville,  1  Bond, 
81;  Barclay  v.  Howell,  (5  Pet.  498; 
Keen  v.  Lynch,  1  Rob.  (Va.)  186; 
Dummer  v.  .lensey  City,  20  N.  J.  L. 
86  ;  Vick  v.  Vicksburg,  2  Miss.  379; 
State  V.  Catliu,  3  Vt.  530;  McKee  v. 
St.  Louis,  17  Mo.  184;  Hunter  v.  San- 


Dedicatio:n^. 


1281 


deed  or  other  written  evidence ;  the  mere  oral  declarations  and 
acts  of  the  owner  will  warrant  the  presumption  of  a  dedication, 
though  followed  by  public  enjoyment  for  ever  so  short  a  time. 
The  time  of  enjoyment  is  immaterial,  or  it  may  be  presumed 
from  lapse  of  time,'  or  by  immediate  presumption.^  The  rule  as 
to  dedication  at  common  law  is  but  the  application  of  the  doc- 
trine of  estoppel  in  pais.  A  dedication  to  the  public  use  does 
not  operate  as  a  grant,  but  as  an  estoppel  ia  pjals  of  the  owner  of 
the  servient  estate  from  asserting  a  right  of  possession  inconsist- 
ent with  the  uses  and  purposes  for  which  the  dedication  was 
made.^  A  party  is  as  much  estopped  from  acting  fraudulently 
or  unjustly  with  reference  to  property  to  which  he  has  not 
strictly  and  technically  a  legal  title,  as  with  reference  to  property 
to  which  his  legal  title  is  perfect.  So,  where  a  person  has  an 
equitable  title,  and  the  United  States  have  the  naked  fee,  he  may 
convey  and  dispose  of  it  as  he  pleases,  and  if  he  dedicates  any 
portion  of  it  to  the  public  use,  he  is  estopped  from  revoking  such 
dedication  to  the  prejudice  of  anj^  individual,  or  to  the  public. 
A  party  having  no  title  or  interest  in  land  may  estop  himself  by 
his  deed  fron  questioning  the  validity   of   his  title,  or  denying 


dy  Hill,  6  Hill,  407;  Post  v.  Pearsall, 
22  Wend.  425;  Dover  v.  Fox,  9  B. 
Mod.  200;  Macou  v.  Franklin,  12  Ga. 
239;  Morrison  V.  Marquardt  24  Iowa, 
35;  Pearsall  v.  Post,  20  Wend.  11; 
Cincinnati  v.  White,  6  Pet.  431;  Tal- 
mage  v.  Bank,  26  N.  Y.  105;  Ward  v. 
Davis,  3  Sandf.  502;  Molntyre  v. 
Storey,  80  111.  127;  Child  v.  Campbell, 
9  N.  Y.  251;  Gridley  v.  Hopkins,  84 
111.  528;  Barkley  v.  Howell, G  Pet.  498; 
Keen  V.  Lynch,  1'  Rob.  (Va.)  486. 

'  WilkiJs  V.  Barnes,  79  Ky.  323; 
State  V.  Wilkinson,  2  Yt.  480;  Bow- 
man V.  AVicklifife,  15  B.  Mon.  99;  R. 
V.  Lloyd,  1  Camp,  200;  Ham  v.  Mc- 
Leotl,  2  Met.  98;  Thomas  v.  Bertram, 
4  Bush,  317;  State  v.  Trask,  6  Yt. 
355;  Shaw  v.  Crawford,  10  Johns. 
286;  State  v.  Sartor,  2  Strobh.  61; 
Stevisonv.  Woodi-ulf,  21  N.  J.  L.134; 
State  V.  Thomas,  4  Harr.  568;  Reed 
Vol.  I.— 81 


V.  Northfield,  13  Pick.  13:  Elliott  v. 
Treadway,  10  B.  Mon.  22;  Kenney  v. 
LeVan,  23  Minn.  513;  R.  R.  Co.  v. 
Jollie,  79  III.  35;  Robertson  v.  Wells- 
ville,  1  Bond,  81 ;  Abbott  v.  Miles,  8 
Yt.  521 ;  Greely  v.  Qiiimby,  22  N.  H. 
338;  Kennedy  v.  Jones,  11  Ala.  63; 
Schenly  v.  Commonwealth,  26  Pa. 
St.  29;"  Reg.  v.  East  Mark,  11  Q.  B. 
887. 

^Earned  v.  Earned,  11  Met.  421; 
Noyes  v.  Ward,  19  Conn.  265. 

=>  Mankato  v.  Willard,  13  Minn.  13; 
Cincinnati  v.  White,  6  Peters.  431: 
Pawlett  V.  Clark,  9  Crancli,  292; 
Olcott  V.  Baufill,  4  N.  H.  537;  Schur- 
meier  v.  R.  R.,  10  Minn.  82;  Cincinnati 
V.  C(mim'rs,  7  Ohio,  188;  Curtis  v. 
Kcesler,  14  Barb.  521;  Brown  v.  Plan- 
ning, 6  Ohio,  298;  Hunter  v.  Trus- 
tees, 6  Hill,  407;  Fulton  v.  Merrifield, 
8  Ohio,  440. 


1282  The  La  ay  of  Estoppel. 

t]i;it  l»o  had  antliority  to  convey  the  fee,  or  devote  any  interest  or 
estate  to  public  use  at  the  time  of  the  sale  or  dedication. 

§  1145.  This  principle  of  estoppel  in-  j>a/'s  is  applied  in  the 
case  of  the  dedication  of  the  use  of  one's  land  to  the  public  as  a 
public  conunon,  landin<^  place  or  highway  where  private  and 
individual  rights  have  been  acquired  in  reference  to  it.  A  dedi- 
cation to  pious  and  charitable  uses  may  be  effectual,  though  not 
distinctively  a  public  one,  and  if  so  made  that  the  holder  of  the 
estate  becomes  a  trustee  for  the  purposes  of  a  charity,  no  subse- 
quent conveyance  to  one  having  notice  could  change  the  use. 
The  grantee  would  himself  become  tlie  trustee.  But  the  more 
erecting  of  a  church  for  a  religious  society  does  not  dedicate  it. 
The  owner  may  sell  it  if  he  pleases.  To  effect  such  a  dedication 
there  must  be  a  donation  by  the  owner,  or  some  unequiv^ocal  act 
united  wnth  an  intent  to  divest  himself  to  some  extent  of  the 
ownership  or  power  of  control  over  tlie  property,  and  to  vest  an 
independent  and  irrevocable  interest  in  some  other  person  or 
body.'  The  law  considers  such  a  state  of  things  in  the  nature  of 
an  estoppel  m  pais,  which  precludes  the  original  owner  from 
revoking  such  dedication,  for  this  would  be  a  violation  of  good 
faith  to  the  public,  and  to  those  who  have  acquired  private  prop- 
erty with  a  view  to  the  enjoyment  of  the  use  thus  publicly 
granted.  But  in  accepting  the  dedication  of  a  way,  the  public 
take  it  as  it  is,  and  if  defective  or  dangerous,  the  public  will  be 
responsible."  If  land  lias  been  dedicated  and  accepted  as  a  pub- 
lic square,  for  instance,  and  individuals,  upon  the  faith  thereof, 
have  built  their  houses  in  reference  to  it  as  such,  the  dedication 
cannot  afterwards  be  rescinded   and  revoked.'     Thus,  where  the 

Baucan  v.  Mann,  59  111.  492;  Hard-  Paige,  510;  Iluber  v.  Gazley,  18  Ohio, 

ing  V.  Hale,  Gl  111.   193;  McWiVliama  18;  Lecleic  v.   Gallipolis,  7  Ohio,  88; 

V.  Morgan,  61  111.  89;  AUv  Gcnl  V.  Poarsall     v.    Post,    20    Wemi.     Ill; 

Merrimac  Co.,  14  Gray,    580;  Be;iUy  Winona  v.  Ilufl,  11  Minn.  119;  Doc 

V.  Kurtz,  2  Pet.  526;  Assoc.  V.  Bandy,  v.   Attica,    7   lud.    641;  Reynolds   v. 

93  Ind.  246.  Comra'rs,     5     Ohio,    204;     Smith   v. 

2  Robbins  v.  .Jones,  20  L.  Kop.  C.  B.  lleusloii,  6  Ohio,  101;  Brown  v.  Man- 

291.  ning,     G     Ohio,     298;      Lebanon     v. 

•'  Commonwealth  v.   Rush,   14  Pa.  Comm'rs,  9  Ohio,  80;  Dover  v.   Fox, 

St.    186.    State  v.   Wilkinson,   2   Vt.  9  B.  ^lon.  200;  Livermore  v.  Maquo- 

480;  Abbott  V.  Mills,  3  Vt.  521;  State  keta,   35  Iowa,   360;  Smith  v.  State, 

V.  Callin,  3  Yt.  530;  State  v.  Trask,  6  23  N.  J.  L.  713. 
Vt.    355;    Watertown    v.    Cowcn,    4 


Dedication. 


1283 


commissioners  of  a  county  laid  out  a  town  for  a  county-seat,  by  a 
plot  on  which  certain  squares  were  indicated  as  "  public  lots,"  and 
individuals  built  around  one  of  these,  it  was  held  that  thev  might 
enjoin  the  erection  of  buildings  upon  the  land  thus  set  apart.' 
Nor  does  the  estoppel  depend  upon  the  length  of  time  for  which 
this  use  shall  have  been  enjoj-ed/ 

§  1146.  There  is  no  necessity  for  a  grant  or  conveyance  by 
deed  or  writing  on  the  part  of  the  owner  of  land,  in  order  to  con- 
stitute a  dedication.  If  lie  do  such  acts  in  pais  as  amount  to  a 
dedication,  the  law  regards  him  estopped  in  pais  from  denying 
that  the  public  have  a  right  to  enjoy  what  is  dedicated,  or  from 
revoking  what  he  has  thus  declared  b}^  his  acts.  There  may  be  a 
dedication  to  the  use  of  a  town  before  it  is  incorporated,  or  to  the 
public,  or  a  body  not  capable  of  taking  a  grant.  A  dedication 
when  once  made  to,  and  accepted  by  the  public,  is  in  its  nature 
irrevocable.^ 


1  Eutherford  v.  Tajior,  38  jSIo.  315; 
Abbott  V.  Mills,  3  Vt.  521 ;  Huunibal 
V.  Diaper,  36  Mo.  332;  Price  v. 
Thompsou,  48  Mo.  361. 

-  Jarvis  v.  Dean,  3  Biug.  477; 
Eugby  V.  Meniweather,  11  East,  376; 
Connehau  v.  Ford,  9  Wis.  340;  State 
T.  Mudd,  23  N.  H.  27;  E.  v.  Lealce,  5 
B.  &  A.  469;  Hanson  v.  Taylor,  23 
Wis.  547;  Noyes  v.  Ward,  19  Coun. 
250;  Holdane  v.  Trustees,  21  K.  Y. 
474;  Buchanan  v.  Curtis,  25  Wis.  99; 
NowHq  v.  Whipple.  79  lud.  481; 
Hoole  V.  Att'y  Gen'rl,  22  Ala.  190; 
Boyer  v.  State,  16  Ind.  451;  Evans- 
ville  V.  Paige,  23  Ind.  525;  Cincinnati 
V.  White,6  Pet.  431 ;  Barclay  v.  Howell, 
6  Pet.  498;  Irwin  v.  Dixon,  9  How.  10; 
Hobbsv.  Lowell,  19  Pick.  405;  State 
V.  AVilkinson,  2  Yt.  480;  Hunter  v. 
Sandy  Hill,  0  Hill,  407;  Gamble  v. 
St.  Louis,  12  Mo.  617;  Lewis  v.  San 
Antonio,  7  Tex.  288;  New  Orleans  v. 
U.  S.,  10. Pel.  661;  Weisbrodv.E.  E., 
18  Wis.  35;  State  v.  Trask,  6  Vt.  353; 
Doe  v.  Jones,  11  Ala.  63;  Onstott  v. 
Murray,  22  Iowa,  457;  Pelle  v.  Scholte, 


24  Iowa,  283;  Saulet  v.  New  Orleans, 
10  La.  An.  81. 

3  State  V.  Trask,  6  Vt.  355;  Com- 
monwealth V.  Albrugh,  11  Wheat. 
469;  ]Missouri  v.  How,  27  Mo.  211; 
Huber  v.  Gazley,  18  Ohio,  18;  Eowan 
V.  Portland,  8  B.  Mon.  232;  Eagan  v. 
V.  McCoy,  29  Mo.  356;  Scott  v.  Slate. 
1  Sneed,  632;  Dubuque  v.  Maloney,  9 
Iowa,  455;  Williams  v.  Cliurcli,  1 
Ohio  St.  478;  Cincinnati  v.  White,  6 
Pet.  -431;  New  Orleans  v.  U.  S.,  10 
Pet.  662;  Cady  v.  Conger,  19  N.  Y. 
256;  Ilaynes  v.  Thomas,  7  Ind.  38; 
Warren  v.  Jacksonville,  15  111.  236: 
Cole  V.  Sproul,  35  ]\Ie.  161 ;  Skeen  v. 
Lynch,  1  Eob.  (Va.)  186  ;  Vick  v. 
Vicksburg,  2  Miss.  379;  Cotinehau  v. 
Ford,  9  Wis.  240;  Commonwealth  v. 
Fi.sk,  8  Met.  238;  Ward  v.  Davis,  3 
Sand.  503;  Wright  v.  Tukey,  3  Cush. 
294;  Paulett  v.  Clark,  9  Cranch,  292; 
McConnell  v.  Lexington,  13  Wheat. 
583  ;  Doe  v.  Jones,  11  Ala.  63;  Au- 
toues  V.  Eslava,  9  Port.  537;  Winona 
v.  Huff,  11  Minn.  119;  Mayor  v.  Com- 
pany, R.  M.  Charlt.  342;   Klinkeuer 


1284  The  Law  of  Estoppel. 

/  §  1147.  Where  there  is  a  innp  or  plat,  on  M-]iich  land  is  hiid 
off  with  streets,  avenues  and  alleys  intersecting  it,  and  the  owner 
of  such  land  adopts  that  niaj)  bj'  sales  with  reference  tliereto,  his 
acts  will  amount  to  a  dedication  of  the  designated  streets,  avenues 
and  alleys  to  the  public.  Such  dedication  will  estop  the  land 
owner  from  claiming  compensation  for  the  land  taken  for  the 
street.  The  deed  is  conclusive  evidence  of  the  dedication,  and 
parol  evidence  of  an  intention  not  to  dedicate  is  inadmissible.' 
By  laying  out  a  town,  and  selling  lots  which  are  sub-divisions  of 
the  land  owned  by  the  grantor  who  has  caused  a  map  or  plat  of 
such  town,  village  or  addition  to  a  city,  to  be  recorded,  with 
streets,  alleys  and  ways  marked  thereon  of  a  certain  width,  and 
describing  the  property  sold  as  lot — block— ^he  conveys  the  lot 
subject  to  an  easement  which  easement  he  has  by  the  record  of 
his  duly  acknowledged  plat  absolutely  and  irrevocable  conveyed 
or  dedicated  to  the  public.  The  purchasers  of  all  lots  acquire,  as 
appurtenant  thereto,  a  vested  right  in  and  to  the  use  of  adjacent 
grounds,  designated  as  public  grounds,  streets  and  ways,  on  such 
plat,  to  the  full  extent  of  the  designation  on  such  plat  imports, 
which  ]-ight  cannot  be  divested  by  the  owner  making  the  dedica- 
tion, nor  by  the  town  in  its  corporate  capacity.*     It  is  immaterial 

V.  School  Dis.,  11  Pa.  St.  414;  Pella  State  v.  Willuuson,  2  Vt.  480;  Fisher 

V.  Scholte,  24  Iowa,  28o;  "VVaugh  v.  v.    Beard,    32    Iowa,  34G;   Grhlley  v. 

Leech.  28  111.  488;  Bryant V.  McCuud-  Ilopkius,    84    111.    538;   Woodyer   v. 

less,  7  Ohio,  135.  Iladdeu.    5    Taunt.    125;   Schenly   v. 

'CI  irk   V.   Elizabeth,   40  X.   J.   L.  Commonwealth,  26  Pa.  St.  29;  Bartlctt 

172;    Denver  V.  Clements,  3   Col.  472;  v.    Bani^ur,    67  Me.  460;   Zearing  v. 

Hiss  V.  R.  R.  Co.,  52  Md.  242;  S.  C,  Raber.  74  111.  400;  Ilanaibal  v.  Draper. 

30  Am.  R.  371;  Field  v.  Carr,  59  111.  36  .AIo.  332;  Livermore  v.  Maquoketa, 

198;  Vicksburg  v.  Marshall,  59  Miss.  35  Iowa,  358;  Commonwealth  v.  Rush, 

563;  Lamar  Co.  v.  Clements,  49  Tex.  14  Pa.   St.   190;  Rivers  v.   Dudley,  3 

347;   Devvitt   v.   Ithica,  15   Hun,  508;  Jones  (N.  C.)  136  ;  Brown  v.  Manning, 

Brooklyn,  in  re,  73  N.  Y.  179.  6  OJiio,    298;   Lewis  Street,  in  re,  2 

5  Dubuque  V.  Jlaloney,  9  Iowa,  540;  Weud.  472;  Clement  v.  West  Troy, 

Leffler   v.  Burlington,  18   Iowa,  3.11;  16  Barb.  251;  Oswald  v.  Gaructt.  22 

Bowen  v.   Portland,  8   B.  j\Ion.  232;  Tex.  94:  Preston  v.  iSavasota,  34  Tex. 

Proctor    V.    Lewistou,    25    III.    153;  684;  Iluber  v.   Gazley,   18  Ohio,  18 ; 

Livingstone  v.   New  York,  8   Wend.  Smith  v.    Flora,  64  111.93;  Logans- 

106;    Wyraan     v.    New     York,     11;  port  v.  Dunn,  8  Ind.   378;  Beaty  v. 

Wend.   487;  Watertown  v.  Cowcn,  4  Kuntz,  2  Pet.  560 ;   Price  v.  Brenken- 

Paige  Ch.  510  ;    Cincinnati  v.  White,  ridge,  77  Mo.  447;  Rowan  v.  Portland, 

6  Pet.  431 ;  Barclay  v.  Howell,  10  Pet.  8  B.  ^Mon.  232  ;  Lamar  Co.   v.  Clem- 

468;  Burton  v.   Martz,  38   Mich.  701;  ents,  49   Tex.  347;    Fisher  v.    Beard, 


Dedication.  1285 

whether  the  plat  is  ou  record  at  the  time  of  the  execution  of  the 
conveyance  or  is  subsequently  recorded.  The  deed  is  conclusive 
evidence  of  the  intention  to  dedicate.  ^^The  making  of  the  map, 
or  plan,  and  selling  building  lot-s^'thereon,  and  keeping  silent 
while  improvements  are  made,  are  the  clearest  evidence  of  an 
intention  on  the  part  of  the  owner  to  donate  the  land  thus 
designated,  to  public  use,  and  purchasing  the  lots  sold  in  this 
manner,  and  making  the  improvements,  or,  if  it  be  a  street,  work- 
ing and  repaii'ing  it  by  the  public  authorities,  or  a  user  by  the 
public  a  sufiicient  time,  constitute  evidence  of  acceptance  of  the 
proffered  donation,  which,  if  unequivocal,  makes  the  dedication 
complete  ;  and  the  reasons  that  underlie  an  estoppel  in  pais  are 
cogent  against  allowing  the  owner  to  revoke  the  dedication.* 
The  intention  of  the  owner,  manifested  by  express  consent,  or  by 
acquiescence  in  the  user  of  the  thing,  will  create  dedication.^ 

§  1148.  All  that  is  necessary  to  constitute  a  good  dedication, 
is,  that  tliere  should  be  an  intention  and  an  act  of  dedication  on 
the  part  of  the  owner,  and  an  acceptance  on  the  part  of  the  pub- 
lie.  Whenever  these  concur  the  dedication  is  complete.  When 
the  dedication  is  accepted  it  takes  effect,  and  the  owner  of  the 
soil  is  thenceforward  estopped  from  reasserting  his  ancient  rights.^ 

33  Iowa,  346;  Alvez  v.  Henderson,  16  Le  Cleicq  v.  Gallipolis,  7  Ohio,  217; 

B.  Men.  168;   Lawrence   v.  Mayor,  3  Getchcll  v.  Benedict,  57  Iowa,    121; 

Barb.  577  ;  Williams  v.  Smith,  23  Wis.  Commonwealth  v.  Alburger,  1  Whart. 

594;    Abbott    v.    Mills,    3    Vt.    521;  485;  Waiigb  v.  Leech,  28111.  448;  Vrec- 

Rutberford   v.    Taylor,    38    Mo.   315;  laud  v.  Torrey,  34  N.  J.  E.  312;  Weis- 

White  V.  Flauigan,  1  Md.  525;   Wet-  brod  v.  R.  R.  Co.,  20  Wis.  419;  Engine 

more  v.  Story,  23  Barb.  414;   Mayor  Co.   v.    Steamsliip  Co.,  12  R.    I.  348; 

V.    Franklin,    12  Ga.    243;   Moale   v.  Price   v.   Breckenridge,   77   Mo.   447; 

Mayor,  5  Md.  314;   State   v.  Catlin,  3  Assoc,  v.  Bandy,  93  Ind.  246. 

Vt.  SaO;  Sutherliu  v.  Jackson,  32  Me.  '  Richmond  v.  Stokes,  31  Gratt.  378; 

80;  Godfrey  v.  Alton,  12  111.  29;  Baton  Kaime  v.  Hart3^  73  Mo.  316  ;   Camp-^ 

Rouge  V.  Bird,  21  La.  Ann.  246;  17lh  bell  v.  O'Brien,  75  Ind.  333;  Tuflfer  v. 

Street,  in  re,   1  Wend.  362 ;  Warren  Huson,    46    Wis.    646 ;    Vreeland  v. 

V.    Mayor,    22  Iowa,   351;    Rung    v.  Torrey,  34   N.  J.  E.  312;   Mansur  v. 

Shoneberger.    3    Watts,    25;    Mercer  State,  60  Ind.  357;  Bloomstein  v.  Clees 

Street,  in  re,  4  Cow.  543;  Comm'rs  v.  3  Tenn.  Ch.  433. 

Lathrop,  9  Kas.  453;  Cardy  V.  Conger,  *  ^Varren    v.    Jacksonville,    15    111. 

19  N.  Y.  256;  Augusta  v.  Perkins,  3  236;   Dimon  v.  People,  17  111.  433; 

B.  Mon.  437;  Gosselra  v.  Chicago,  103  Marcy  v.  Taylor,  19  111.  634. 

111.  633  ;  Indianapolis  v.  Croas,  7  Ind.  »  Abbott  v.  Mills,  3  Vt.  54;   Dem- 

13;  New  Orleans  v.  U.  S.,  10  Pet.  667;  ming  v.  Rowe,  6  Wend.  651;  Woolard 


1286 


The   Law  of  Estoppel. 


'''Wliere  land  has  been  set  apart  for  public  use  and  private  aud 
individual  rights  acquired  with  reference  to  it,  such  setting  apart 
is  regarded  as  an  estoppel  in  pais,  precluding  the  original  owner 
from  asserting  a  right  to  the  ])Ossession,  although  the  fee  may  be 
in  such  owner.'  If  proprietors  of  land  evince  by  their  manner  in 
laying  it  out,  selling  it,  or  appropriating  it  to  the  public  or  cor- 
porate uses,  an  intent  to  set  it  apart  and  devote  it  to  the  uses  of  a 
municipal,  educational,  religious  or  other  corporations,  their  so 
doing  is  a  dedication  of  the  property  to  such  uses,  and  they  are 
afterwards  estopped  from  resuming  control  over  it."  It  is 
a  general  rule  that  to  constitute  a  valid  common  law  dedication, 
there  must  be  an  intention  to  dedicate,  and  an  act  on  the  part  of 
the  owner,  aud  an  acceptance  on  the  part  of  the  public.  This 
general  rule  is,  however,  subject  to  modification,  that  if  the 
owner  of  a  servient  estate  intentionally  or  by  gross  negligence 
leads  the  public  to  believe  that  he  has  dedicated  the  premises  to 
public  use,  he  will  be  estopped  from  denying  the  dedication  to 
the  prejudice  of  those  whom  he  may  have  misled.  If  he  shall 
do  such  acts  in  pais  as  amounts  to  a  dedication  the  law  regards 
him  as  estopped  in  pais  from  denying  that  the  public  have  a  light 


V.  :McCiillougli,  1  Ired.  432;  State  v. 
Trask,  6  Vt.  355;  Slate  v.  Marble,  4 
Ired.  318;  Shaw  v.  Crawford,  10 
Johns.  236;  Post  v.  Pearsall,  22  Wend. 
425;  Gowen  v.  Phil.  &  Co.,  5  W.  «fc  S. 
141;  Green  v.  Chelsea,  24  Pick.  71; 
Barclay  v.  Howell,  6  Pet.  498  ; 
Wooilyer  v.  Iladden,  5  Taunt.  125; 
Pritcliiird  v.  Atkinson,  4  N.  II.  1; 
State  V.  Campion,  2  N.  H.  513;  Child 
V.  Chappell,  9  N.  Y.  24G;  Carpenter 
V.  Gwymi,  35  Barb.  395;  Schenley  v. 
Commonwealth,  36  Pa.  St.  29;  Conne- 
han  V.  Ford,  9  Wis.  240;  Common- 
wealth v.  Fisk,  8  Met.  238;  Scott  v. 
State,  1  Sneed,  633. 

>  Morgan  v.  R.  R.,  96  U.  S.  716; 
Princeton  v.  Templeton,  71  111.  68; 
Sanford  v.  Meriden,  62  Miss.  383; 
Mayor  v.  Backman,  G6  N.  Y.  261; 
Haynes  v.  Thomas,  7  Ind.  38;  Rich- 
mond v.  Stokes,  31  Gratt.  378;  Holdaue 


V.  Cold  Spring,  24  N.  Y.  474;  Godfrey 
V.  Alton,  12  111.  29;  Columbus  v.  Bahn, 
36  Ind.  330;  R.  v.  Leake,  5  B.  &  A. 
469;  Rowan  v.  Portland,  8  B.  Mnn. 
232;  Harris'  Case,  20  Gratt.  833;  Ful- 
ton V.  Mehrenfield,  8  Ohio  St.  40; 
Schurmeier  v.  R.  R.  Co.,  10  Minn.  82; 
Penquite  v.  Lawrence,  11  Ohio  St. 
274;  ]\Iathis  v.  Parham,  1  Tenn.  Cii. 
533;  Lee  v.  Lake,  14  ]\Iich.  12;  Weis- 
brod  V.  R.  R.,  18  Wis.  35;  Common- 
wealth V.  Albruger,  1  Whart.  469 ; 
Ragiun  V.  McCoy,  29  Mo.  359;  State  v. 
Catlin,  3  Vt.  530;  Macon  v.  Fianklin, 
12  Ga.  239:  Indianapolis  v.  Cross,  7 
Ind.  9;  Mansur  v.  Stale,  60  Ind.  357; 
Cincinnati  v.  White,  6  Pet.  431. 

2  Hannibal  v.  Draper,  15  Mo.  634: 
Trustees  v.  Havens,  11  111.  554;  Atkin- 
son V.  Bell,  18  Tex.  474;  Mayor  v. 
Franklin.  12  Ga.  239. 


Dedication.  1287 

to  enjoy  what  is  dedicated,  or  revoking  what  he  has  thns  dedared 
by  his  acts,  and  a  dedication  once  made  and  accepted  by  the  pub- 
lic is  in  its  nature  irrevocable.'  The  principle  on  which'  the 
binding  and  irrevocable  nature  of  a  dedication  of  a  street  or  high- 
Avay  rests,  is  if  it  be  laid  out  on  the  soil  or  a  map,  by  authority  of 
the  owner  of  the  land,  and  the  resumption  of  that- street  or  way 
would  be  a  fraud  upon  any  interests  acquired  upon  the  faith  of 
its  being  left  open,  the  owner  cannot  revoke  that  appropriation, 
this  dedication  may  be  immediate,  as  if  one  owing  land  exhibit  a 
map  of  it,  on  which  a  street  is  laid  out,  though  not  yet  opened, 
and  building  lots  be  sold  by  liim  with  reference  to  the  front  or 
rear  of  chat  street,  or  lots  conveyed,  being  described  as  by  streets, 
this  is  an  immediate  dedication  of  that  street,  and  the  purchasers 
of  lots  have  a  right  to  have  that  street  thrown  open  forever.* 
This  principle  is  not  limited  in  its  application  to  the  single  sti'eet 
on  which  such  lots  are  situated,  if  it  is  shown  that  the  opening  of 
a  street  has  induced  others  to  become  interested  in  such  a  man- 
ner, that  the  resuming  of  the  soil  would  be  a  fraud  upon  them  ; 
and  without  such  particular  showing,  hipse  of  time  operates  as 
affording  a  presumption  that  a  revocation  would  be  injurious  to 
interests  accpiired  on  the  faith  of  the  streets  beiug  left  open,  and 
therefore  would  be  fraudulent ;  the  length  of  time  for  this  pre- 
sumption must  v^ary  with  the  circumstances,  but  it  ought  to  be 

'  Wilder  v.  St.  Paul,  12  Aliun.  192.  Hannibal    v.    Draper.    15    Mo     634; 

^Bartlett  v.    Bangor,    67  Me.  460;  Sclienley  v.   Commonwealth,    36  Pa. 

Birdges    v.     VVycoffi,    67   N.  Y.   130;  St.   62;  '  Doe  v.    Attica,   7  Ind.   641  ; 

Shanklin  v.   Evausville,  55  Ind.  240;  Wyman  v.  New  York,  1  Wend.  487; 

Cliurch   V.  Hoboken,  33  N.  J.  L.   13;  Livingstone  v.   New  York,  8  Wend. 

Baton  Rouge  v.    Bird,   21   La.   Ann.  85;  McKenna  v.   Comm'rs,  Harp.  L. 

244;    Preston   v.    Navasota,   34   Tex.  381;   White  v.   Cower,  4  Paige,  510; 

684;   Field  v.   Carr,  59  111.  198;   Trus-  Barclay  v.  Howell,  6  Pet.  498;  Town 

tees  V.  Walsh,  57  111.  364;  Williams  v.  v.   Lithgoe,  7  Rich.  435;  AVyman  v. 

Smith,  22  Wis.  594;  Pettibone  V.Ham-  Mayor,   11   Wend.   481;  Dubuque  v. 

ilton,  40  Wis.  402;  Moale  v.  Baltimore,  Maloney,  9  Iowa,  450;  Pope  v.  Union, 

5  Md.  314;  White  v.  Flanigan,  1  Md.  18  N.  J.  Eq.  282;   Rowland    v.  Port- 

525;   Rowan  v.   Portland,  8  B.  Mon.  land,  SB.  Mou.  232;  Winona  v.  Huff, 

232;Augustav.Perkins,  8B.  ]Mon.2()7;  11  Minn.  119;  Huber  v.   Gazley,  18 

County  V.  ISewport,  12  B.  Mon.  538;  Ohio,  18;   Shanklin  v.  Evansville,  55 

Wickliffe  v.   Lexington,  11  B.  Mon.  Ind.    240 ;    Woodyer    v.    Haddon,  5 

155;   Newport  v.  Taylor,  16  B.  M(m.  Taunt.  125;  Fulton  v.  Mehreufield,  8 

699;  Stone  v.   Brooks,  35  Cal.    489;  Ohio   St.  448;  Johnson  v.   Scott,  11 

Cook    V.   Burlington,    30    Iowa,   94;  Mich.  243. 


12.S8  The  Law  of  Estopi'el. 

tor  sncli  a  length  of  time  tliat  the  public  accommodation  and  pri- 
vate rights  might  be  materially  affected  by  an  interruption  of  the 
enjoyment.'  In  one  case,  the  court  said  :  "however  singular  the 
anomaly  which  is  thus  created  in  law,  that  a  dedication  of  lands 
to  a  public  use,  in  effect  extinguishing  forever  the  title  of  the 
owner,  may  be  made  by  an  act  in  pais  ;  that  tlie  doctrine  of 
prescription  is  not  applicable  to  the  case,  so  as  to  require  evidence 
of  long  user  to  establish  the  right,  but  that  a  valid  dedication 
may  be  made  by  a  single  act,  if  positive  and  unequivocal  in  its 
nature,  and  especially  where  purchases  have  been  made  upon 
the  faith  which  the  act  was  meant  to  induce  ;  that  to  constitute 
a  public  use,  it  is  not  necessary  that  the  public  at  large^  that  is, 
all  persons  without  distinction,  shall  be  able,  or  be  entitled 
to  share  its  advantages,  but  it  is  sufficient  that  its  advantages  are 
meant  to  be.  and  may  be  shared  by  the  inhabitants,  or  by  vi por- 
tion of  the  inhabitants  of  a  city,  town,  village  or  other  locality.'" 

§  1149.  Where  defective  proceedings  ai*e  resorted  to  for  the 
purpose  of  laying  out  a  highway,  and  the  land  owner  accepts  the 
damage  as  awarded,  he  is  estopped  from  contesting  the  validity 
of  the  highway,  and  the  act  may  be  regarded  as  a  dedication,'  and 
if  the  owner  of  land  intended  and  assented  that  the  public  should 
use  it,  and  the  public  do  so,  that  is  a  dedication.*     The  owner 

>  Cincinnati  v.  White,  6  Peters,  431;  R.  v.  State,  29  Ala.  580;  Detmole  v. 

Jarvis  v.  Dean,  3  Bing.  447;   State  v.  Drake,   46  N.   Y.  318;  Chatterton  v. 

Catlin,  8  Vt.  530;  Saulet  v.   New  Or-  Parrot,  46  Mich.  430;  Kile  v.  Yellow 

leans,    10  La.    Ann.    81;   Denning  v.  head,  80  111.  280;  Prescott  v.  Patter- 

Roome,  6   Wend.  651;   Tallmadge  v.  sou,  46  Mich.  622;   Snow  v.   Walker, 

Bank,  26  N.  Y.  105;  Barclay  v.  How-  42  Te.x.  154;  Kellogg  v.  U.  S..  1  Ct.  of 

ell,    6  Pet.   498;  Noyes  v.   Ward,  19  CI.  310;  Pursley  v.   Hayes,  17  Iowa, 

Conn.  250;  State  v.  Marble,  4  Ired.  L.  310;    Cominonweallh  v.  Shuman,  18 

318;  Skean  v.   Lynch,    1   Rob.  (Va.)  Pa.  St.  343;  Smith  v.  Warder,  19  Pa. 

202;   Sheen  v.  Stothard,  29  La.  Ann.  St.  626;   Deford  v.    Mercer,  24  Iowa, 

630.  118;  Thillale  v.  Stanley,  14  Iiid.  409; 

«  Ward  V.  Davis,  3  Sandf.  502.  R.  R.  Co.  v.  Chamberlain,  84  111.  333; 

3  Schalz  V.  Pfeil,  56  Wis.  429;  Haw-  Ogden  v.  Stokes,  25  Kas.  517;   Harts 

ley  V.   Harrall,   19  Coin.   142;   Whit-  horn  v.   Potroff,  89  111.  509;   Test  v. 

tlcsley  V.  R.  R.,  23  Conn.  421;  Burns  Larsh,  76  lud.  45C;  Burns  v.  Dodge, 

v.  R.   R.   Co..  9  Wis.   450;    R.  R.  v.  9  Wis.  458;  Pryzbylowicz  v.   R.   R., 

Proctor,  29  Vt.  93;   Hitchcock  v.  R.  17  F.  R.  492. 

R.,  25  Conn.  516;  Baker  v.  Braman,  6         ■»  Gardner   v.    Tisdale,  2   Wis.  153; 

Hill,  47;  Embury  v.  Conner,  3  N.  Y.  Holden  v.   Trustees,    23  Barb.    103  ; 
511;  Karber  v.  Nelles,  22  Wis.  215;  R. 


Dedication.  1289 

may  estop  himself  from  demanding  compensation  prior  to  the  tak- 
ing of  his  property,  and  also  estop  himself  from  prosecuting  an 
action  to  prevent  the  taking  of  his  property  for  public  uses,  in 
several  ways  ;  thus,  if  he  expressly  consents,  or  with  full  knowl- 
edge of  the  taking,  and  makes  no  objection,  and  permits  a  public 
corporation  to  enter  upon  his  land  and  expend  money  tliereon, 
and  carry  into  operation  the  purposes  for  which  it  was  taken  ;  or 
by  voluntarily  accepting  money  allowed  as  damages  by  the 
tribunal  appointed  for  the  assessment  of  such  damages,  the  actual 
receipt  of  the  money  by  the  owner  of  the  land  ratifies  the  proceed- 
ings and  amounts  to  a  dedication  of  his  property  to  such  public 
uses.  So,  after  having  due  notice  of  the  proposed  taking,  the 
owner  fails  to  claims  damages  within  the  time  fixed  by  law,  he 
cannot  do  so  afterwards.'  And  a  party  who  petitions  for  a  change 
of  a  road,  and  asks  for  an  increase  of  damages,  ratifies  all  prior 
proceedings  and  is  estopped  from  claiming  their  invalidity  for 
irregularities.'  So,  by  joining  in  a  petition  asking  for  a  road, 
acting  as  one  of  the  commissioners,  and  releasing  his  claim  for 
damages,  amounts  to  a  dedication  and  estops  him  and  his  privies 
from  alleging  that  all  the  statutory  requirements  had  not  been 
complied  with.^  Neither  compensation  nor  the  intervention  of  a 
jury  is  required  to  determine  the  necessity  of  the  taking,  required 
to  the  valid  dedication  of  property  to  the  public  use  ;  acceptance 
alone  is  necessary.  Authority  to  an  agent  to  purchase  a  town  site 
and  lay  out  a  town,  is  authority  to  lay  out  streets  in  such  town,  or 
to  dedicate  them  to  the  public  use,  and  the  acts  or  representations 
of  the  agent  with  reference  to  the  laying  out  and  dedication  of 
streets  will  bind  the  principal,  particularly  if  it  appears  that  such 
acts  and  representations  were  brought  to  his  knowledge  and  were 
ratified  by  him.  So  a  party  whose  land  has  been  flowed  for  ten 
years  or  more  by  means  of  a  dam  across  a  navigable  river,  and  who 
has  acquiesced  in  the  original  construction  and  subsequent  use  and 
enjoyment  of  the  water-power,  and  the  repair  and  rebuilding  of 
the  dam  from  time  to  time,  and  thereby  induced  the  making  of 

Dubuque  v.    Maloney,    9  Iowa,    455;  Ogden  v.  Stokes,  25  Kas.  517;  Wool- 

Connehan  v.  Ford,  9  Wis.  244.  sey,  in  re,  95  N.  Y.  135. 

'  Taylor  v.  Marcy,  22  111.  518;  Neff  ^  Trickey  v.    Schlader,   53  111.  78; 

V.  Bates,  25  Ohio  St.  169.  Crockett  v.  Boston,  5  Cush.  182;  Mar- 

2  Jordan    v.    Hascal,   63    Me.  193;  rati  v.  Deihl,  37  Iowa,  250. 


1290  The  Law  of  Estoppel. 

valuable  improvements  to  be  used  in  connection  therewith,  is 
thereby  precluded  from  maintaining  an  action  to  abate  the  dam, 
or  to  restrain  the  owners  from  rebuilding  it  when  purtiully 
destroyed  ;  but  not  from  maintaining  a  common  law  action  for 
his  damages.' 

§  1150.  A  parol  division  of  partition  by  coparceners  or  tenants 
in  common,  accompanied  or  followed  by  an  exclusive  possession 
of  their  respective  shares  has  from  a  comparatively  early  period 
been  held  binding  on  grounds  thought  to  be  legal,  but  the  origin 
is  in  fact  due  to  the  admission  of  purely  equitable  principles  at 
common  law.*  Where  commissioners  appointed  to  make. partition 
of  real  estate  treat  a  portion  of  the  property  as  part  of  a  public 
street  and  make  partition  of  the  remainder,  the  acceptance  oi  the 
parties  to  the  suit  of  such  partition  estops  them  from  denying  that 
the  portion  not  divided  is  a  part  of  the  street.^  Thus,  D.  and  T., 
tenants  in  common  of  real  property,  made  a  parol  partition, 
followed  by  exclusive  possession  and  improvements.  D.  gave  to 
T,  a  deed  of  the  portion  allotted  to  the  latter,  but  afterward 
declined  to  receive  a  deed  from  him  for  the  other  portion,  saying 
he  had  changed  his  mind.  He,  however,  expended  large  sums  in 
the  improvement  of  that  share.  This  gave  him  a  right  to  enforce 
the  agreement  for  partition.  A  parol  partition  of  real  estate  by 
tenants  in  common,  followed  by  an  exclusive  possession  ai-e  acts 
of  ownership  by  each  tenant  respectively  and  are  valid  and  bind 
the  heirs.*  Where  a  plaintiff  presents  a  sworn  petition  for  a 
partition  of  lands  which  stated  that  he  and  others  were  tenants  in 
common  thereof  and  proceedings  are  had  thereon  he  is  estopped 

'  Cobb  V.  Smith,  16  Wis.  661.  Johns.    270;    Corbin  v.    Jackson,    14 

"  McMahan  v.  McMahan,  13  Pa.  St.  Wend.  619;  Brockingtou  v.  Camlin,  4 

376;  Wikley  V.  Bonney,  31  Miss.  644;  Strobh.    Eq.  189;  Ryeis  v.    Wheeler, 

Piatt  V.  Ilubbell,  5  Ohio,  245;  Baker  25  Weml.  434;  Piper   v.  Buckner,  51 

V.  Lorillard,    4  X.  Y.  257;  ODouakl  Miss.    848;  Bement   v.    Williams,    44 

V.  Kelsoy,  10  N.  Y.  412;    Natchez   v.  Tex.  158;  Cox  v.  McMullcn,  14  Gratt. 

Vauderwekle,    31   Miss.  70f);  Slice  v.  82. 

Derrick,  2  Rich.  027;  Jackson  v.  liar-  ^  McGregor  v.  Reynolds,    19   Iowa, 

din,  4  Johns.  202;  Jackson  v.  Living-  228;  Robins  v.  Gleason,  47  Me.  259. 

stone,  7  Wend.  130;   Mount  v.  ^Mortiii,  *  Wood  v.  Fleet,  36  N.  Y.  499;  Nor- 

20  Barb.  123;  Jackson  v.  Vosburg,  9  ton  v.  Outland,  18  Ohio  St.  383. 


Oral  Partition.  1291 

from  denying  that  the  others  are  his  co-tenants,  and  cannot  main- 
tain trespass  against  them  for  entering.' 

§  1151.  There  is  one  otlur  act  of  parties  wliich  may  operate 
in  the  nature  of  an  estoppel,  not  in  conveying  a  title  to  lands 
from  one  to  another,  but  in  quieting  titles  so  as  to  estop  any 
adverse  claim,  and  that  is  by  arbitrament  and  award,  where  the 
parties  have  submitted  to  arbitrators  the  question  of  property  in 
lands,  and  an  award  upon  the  point  has  been  made  and  published. 
Such  award  is  conclusive  as  to  their  respective  rights  of  property, 
even  though  the  snbmission  and  award  were  by  parol.''  While 
the  statute  of  frauds  and  the  principles  of  the  common  law  may 
preclude  the  transfer  or  extinguishment  of  a  right  to  laud,  but  by 
an  award  which  has  its  origin  in  a  parol  submission,  the  trans- 
action operates  as  an  estoppel  without  passing  the  title  and  pre- 
cludes either  party  from  asserting  in  opposition  to  the  award.* 

§  1152.  Adverse  possession  cannot  originate  or  continue  while 
the  party  actually  occupies  under  a  lease  from  the  owner,"  A 
tenant  under  a  lease  from  one  having  possession  and  control  of 
the  premises  but  no  title  to  them  (which  lease  contains  a  clause 
that  in  case  lessors  should  cease  to  control  or  own  the  property 
no  rent  should  be  paid  unless  their  successors  in  writing  should 
confirm  the  lease)  by  holding  under  and  paying  rent  to  the  suc- 
cessive assignees  of  the  owner,  is  estopped  from  denying  that  they 
are  assignees  of  his  original  lessor,  and  continues  bound  to  pay 
rent  to  them  in  that  character  or  as  having  by  the  instruments  of 
confirmation  become  new  lessors.^ 

§  1153.  A  conveyance  will  not  in  general  be  presumed  where 
the  original  enjoyment  was  consistent  with  the  fact  of  there  hav- 

'  Van  Ormau  v.   Phelps,    9    Barb.  447 

SOU  •<  Carey  v.   Wilcox,    6  K  H.  177; 

■'  Doe  V   Rosser,  3  East,  15;  Good  Clark  v.  Wethey,  19  Wend.  320;  Mer 

rich  V.  Dustin,  5  Met.  36:3;  Trustee  v.  rink's  Est.,  5  W.  &  S.  9  ;  Shelton   v 

Yewrc,  Cro.  Eliz  223;  Baker  V.  Town  Alcox,    li   Conn.    240,   Robertson  v. 

send,  7  Taunt  422;  Shelton  v.  Alcox,  McNeal,  12  Wend.  578;  Goodridge  v. 

11   Conn.  2i0;  Bowen    v.  Cooper,    7  Dustin,  5  Met.  363;  French  v.    New. 

Watts,   3li;   Shepherd   v     Ryers,    15  40  Barb.  481 

Johns.  497;  Carey  v.  Wilcox,  G  N.  H.  ■*  Corning  v.    Troy,   34  Barb.  485; 

177;  Sellickv.  Adams,  15  Johns.  197;  Hatch   v.    Peudergrast,    15  Md.   251; 

Davis  V.  Harvard,   15  S.    &  R  .  165;  De  Lancey  v.  Ganong,  9  N.  Y.  9. 

Meriwether    v.    Larman,     3     Snced,  '  Whalin  v  White,  25  N.  Y.  462, 


1292  The  Law  of  Estoppel. 

ing  been  none.'  But  Avliere  the  plaintiff  produced  an  original 
lease  of  the  premises  for  a  long  term,  and  proved  possession  for 
seventy  years,  the  mesne  acsignments  Avero  presumed."  And  tlie 
jury  ^vere  directed  to  presume  that  a  grant  regularly  issued, 
where  a  certificate  of  recovery  had  been  returned,  and  there  were 
sundry  conveyances  of  the  land,  and  possession  by  persons  claim- 
ing thereunder.'  Presumptions  of  grants  are  founded  upon  the 
general  infirmity  of  human  nature,  the  difiiculty  of  preserving 
muniments  of  title,  and  the  public  policy  of  supporting  long  and 
uninterrupted  possessions.  They  may  be  encountered  by  con- 
trary presumption,  and  can  never  fairly  arise  where  all  the  cij'- 
cumstances  are  perfectly  consistent  with  the  non-existence  of  a 
grant. ^  In  general,  the  presumption  of  a  grant  is  limited  to 
periods  analogous  to  those  of  the  statute  of  limitations,  in  cases 
where  the  statute  does  not  apply.  Where  the  statute  applies,  the 
presumption  is  not  generally  resorted  to;  but  if  the  circumstances 
of  the  case  are  very  cogent  and  require  it,  a  grant  may  bo  pre- 
sumed within  a  period  short  of  the  statute."  Peaceable  posses- 
sion of  lands  by  a  party,  will  form  a  presumption  of  title,  on 
which  a  recovery  in  ejectment  may  be  had  against  a  mere 
intruder  or  trespasser,  or  any  one  who  has  entered  upon  the  land, 
except  the  one  having  the  real  title." 

Where  land  was  sold  at  execution  sale,  and  the  execution 
debtor  in  possession  leased  the  land  to  a  third  person  after  sale, 
the  lessee  cannot  set  up  the  title  of  the  vendee,  as  a  defense 
against  the  action  of  the  lessor.' 

§  1154.  A  tenant  can  never  set  up  his  possession  as  adverse  to 
his  landlord,  so  long  as  the  relation  of  landlord  and  tenant  con- 
tinues to  exist.  Where  the  relation  of  landlord  and  tenant  exists 
a  conveyance  by  the  tenant  of  the  demised  premises  cannot 
operate  as  the  basis  of  an  adverse  possession  so  as  to  bar  the  land- 
lord of  his  ejectment,  whether  the  grantee  know  of  the  demise  or 
not.     Where  the  relation  of  landlord  and  tenant  is  established,  it 

'Doe  V.  Reed,  5  B.  &  Aid.  233.  «  Doming  v.  Miller,  83  Barb.  386; 

«  Earl  V.  Baxter,  2  Black,  1228.  Hill  v.  Draper,  10  Barb.  454. 

3  Tboruton  v.   Edwards,   1  liar.  &  '  Wood  v.  Turner,  8  Humph.  687; 

McH.  158.  S.  C,  7  Humph.  517;  Crustsinger  v. 

*  Jackson  v.  Mancius,  2  Wend.  357.  Catlin,  10  Humph.  24. 
Ricard  v.  Williams,  7  Wheat.  59. 


Oral  Partition^.  1993 

attaches  to  all  who  may  succeed  to  the  possession,  through  or 
under  the  tenant  either  immediately  or  remotely.     And  a  pur- 
chaser who  enters  under  an  absolute  conveyance  in  fee  from  the 
tenant,   is   considered   as  entering  as  the   tenant  of  the  lessor; 
although  he  may  not  have  known  that  his  grantor  held  or  derived 
his  possession  from  the  lessor,'     AltJiOugh  a  tenant  cannot  deny 
his  landlord's  title,  yet  he  may  show  that  it  has  terminated,  either 
by  its  own  limitation  or  by  conveyance,  or  by  operation  of  law ; 
after  which  he  may  disavow  and  disclaim  the  tenancy  claim  under 
another  title  hostile  to  that  of  his  landlord,  and  make  his  posses- 
sion adverse.'     A  tenant  cannot  set  up  an  adverse  claim  which 
may  operate  to  bar  his  lessor's  title  by  adverse  possession  under 
the  statute  of  limitations,  until  he  shall  have  expressly  disaffirmed 
such  title  of  his  lessor,  and  given  him  full  notice  that  he  claims 
to  hold  ads'ersely  thereto.'     Without  such  notice   the  law  will 
presume  the   tenant  holds  in  accordance  with  the  demise  under 
which  he  entered.*     The -owner  in  fee  of  land  cannot  be  disseized 
by  his  tenant,  but  at  his,  the  owner's  election.*    In  orJer  to  have 
a  tenancy  grow  into  one  by  suCPerance,  it  must  originally  have  been 
created  by  agreement  of  the  parties,  for  where  one  was  in,  like 
a  guardian,  by  act  of  the  law,  and  held  after  his  ward  arrived  at 
iige,  he  was  a  tort  feasor,  intruder,  abator,  or  trespasser  and  not  a 
tenant   at  sufi'ei-ance.^     A  tenant  at  sufferance  is  not  admitted  to 
question   the   title  of  his  lessor  in  an  action  to  recover  possession 
of  the  land.'     Where  a  tenant,  holding  by  deed  to  him  as  a  ten- 
ant in  common,  ousts  his  co-tenant  who  l)rings  ejectment  for  such 

'  Jacksou  V.  Davis,  5  Cow.  123.  Eklred.  IS  Mich.  12;  Braudou  v.  Ban- 

2  Neliis  V.  Lathrop,  22  Wcud.  121.  nou,  38  Pa.  St.  68,  Green  v.  JVIunson, 

^  North  V.    Baruura,    10   Vt.    220;  9  Vt.  37;  Hudson  v.  Wheeler,  84  Tex. 

Willison  V.  Watkins,  8  Pet.   43;  Mc-  356;  Assoc,  v.  Whitmore,  75  Me.  117; 

Giuuis  V.  Porter,  20  Pu.  St.  80 ;  Lee  Tyler  v.  Davis,  61  Tex.  674;  Houston 

V.    iletherton,    9    Yeig.  315  ;    Zeller  v.    Ferris,    71   Ala.    570;    Whiting  v. 

V.    Eckert,    4    How.    289;    Sher.nian  Edmunds,  94  N.  Y.  809 ;  Vaucleave  v. 

v    Trans.  Co.,   81  Vt.   1(32;  Ass'n  v.'  Wilson,    73   Ala.    387;    Flanigan   v. 

Willard,    48   Cal.    614;    Galloway   v.  Pearson.  61  Tex.  302. 

Ogle,  2  Bin.  472;  Graham  v.  Moore,  ^  Bedford  v.  M"Eiherron,  2  S.  &  R. 

4  S.  &  R.  467;  Jackson  v.  Whitford,  49  ;  Jackson    v.    Wheeler,    6    Johns. 

2  Cai.  215;  Eister  v.   Paul,  54  Pa.  St.  272. 

190;  Jackson  v.   3Iiller,  6  Cow.  751;  ^  Stearns  v.  Godfrey,  16  Me.  158. 

Legatt  V.  Stewart,  2  St.  474;  .Jackson  *  Co.  Lift.  57  D.  2d  Inst.  134. 

V.  Hinman,  10  Johns.  292;  Patterson  '     ''  Jacksou   v.  McLeod,    12    Johns 

V.  Hansel,  4  Bush,   654;  Ryerson  v.  182  ;  Strong  v.  Waddell,  56  Ala.  471, 


1294  The  Law  of  Estoppel. 

ouster,  the  tenant  cannot  set  up  in  defense  an  adverse  title  in  a 
stranger.*  A  Jjonajide  purchaser  holds  adversely  to  all  the  world, 
and  may  disclaim  the  title  under  which  he  entered,  setting  up 
even  against  his  vendor,  any  title  whatever." 

§  1155.  A  person  who  acquires  his  possession  in  such  a  man- 
ner as  to  owe  allegiance  to  the  reversioners,  cannot  set  up  an  out- 
standing title  purchased  by  him  to  defeat  their  rights.  A  posses- 
sion acquired  in  subserviency  to  the  title  of  the  reversioners,  can- 
not be  defended  as  against  them,  by  asserting  a  new  title  subse- 
quently acquired.  The  general  principle  is  that  one  in  possession 
may  purchase  an  outstanding  title  for  the  purpose  of  strengthening 
bis  own.  The  only  qualification  of  this  rule  is,  that  his  possession 
must  not  have  been  taken  under  circumstances  which  preclude 
him  from  disputing  the  title  of  the  party  claiming ;  and  the  quali- 
fication of  the  rule  has  its  foundation  in  the  law  of  estoppel, 
which  will  not  allow  a  man  to  do  what,  in  honesty  and  good 
conscience,  he  ought  not  to  do. 

§1156.  When  a  tenaut  in  possession  of  a  life  estate  in  lands, 
purchases,  of  one  of  several  cestui  que  trusts  of  the  reversion, 
his  undivided  interests  thereto,  and  suffers  the  land  to  be  sold 
for  a  nmnicipal  assessment,  and  becomes  the  purchaser,  he  cannot 
liold  the  land  for  his  exclusive  benefit.  lie  is  bound  to  protect  the 
interest  of  those  who  stand  in  the  same  relation  of  himself  to  the 
property,  and  cannot  take  a  title,  to  their  prejudice,  but  the  title 
he  receives  inures  to  the  common  benefit.  He  cannot  bring  in  a 
claim  against  the  common  propertj',  and  set  it  up  adverse  to  the 
title  of  the  common  cestui  que  trusts.^ 

§  1157.  One  who  takes  a  contract  for  the  purchase  of  land  is 
estopped  from  denying  the  vendor's  title,  and  he  cannot  set  up 
an  adverse  possession  against  the  owner  of  such  title  ;  at  least, 
until  the  vendee  has  fully  performed  the  contract  on  his  part, 
and  become  entitled  to  a  legal  conveyance.  Where  one  is  put  in 
possession  of  land  by  another,  the  former  is  not  at  liberty  to  con- 
trovert the  title  of  the  latter  until  he  has  restored  the  possession 

'  Braintree  v.  Buttles,  G  Vt.  395.  ■•  Burhans  v.  Van  Zauclt,  7  N.  Y. 

«  Croxall  V.  Sberered,   5  Wallace,      523. 
268. 


Adverse  Possession.  1295 

so  received,  and  placed  the  other  party  in  as  good  condition  as  he 
^vas  before  he  parted  with  the  possession.' 

§  1158.  An  offer  to  purchase  huid  by  a  party,  of  another,  is 
such  a  recognition  of  the  title  of  the  hitter  as  will  bar  the  defense 
of  adverse  possession.  Accordingly,  where  the  defendant  took  a 
lease  of  a  parcel  of  land  from  the  plaintiff,  negotiated  with  hiui 
for  the  purchase  of  the  adjoining  strip  of  laud,  though  he  may 
show  that  the  strip  is  included  in  the  demise,  he  cannot  set  up 
adverse  possession.^  And  generally,  one  who,  while  in  possession 
of  land,  recognizes  the  title  of  another,  and  offers  to  purchase 
from  him,  cannot  set  up  his  own  possession  as  adverse,  although 
he  will  be  permitted  to  show  title  out  of  such  person,  if  the 
acknowledgment  of  title  in  him  was  the  fruit  of  mistake  or  impo- 
sition ;  but  he  may  not  even  do  this  if  he  entered  the  land  under 
him.'  Repeated  application  of  the  defendant  to  the  lessor  of  the 
plaintiff,  to  purchase  the  premises  in  question,  affords  a  presump- 
tion that  he  came  into  possession  under  such  lessor.* 

§  1159.  A  party  in  possession  of  lands  may  be  permitted  to 
protect  himself  against  litigation  by  buying  in  claims  made  by 
others,  without  invalidating  his  legal  rights,  or  subjecting  him- 
self to  any  allegiance  to  others.  As  between  vendor  and  vendee 
before  conveyance,  and  between  landlord  and  tenant,  the  posses- 
sion must  first  be  surrendered  before  the  title  can  be  questioned, 
or  an  adverse  possession  set  up.  There  is  no  estoppel  except 
where  the  occupant  is  under  an  obligation,  express  or  implied,  to 
restore  the  possession  at  some  time  or  in  some  event.  A  party 
in  the  possession  of  lands  acknowledging  the  title  of  another,  is 
not  estopped  from  subsequently  disclaiming  holding  under  such 
title,  if  the  original  entry  was  not  under  the  person  in  whom  the 
title  is  acknowledged ;  nor  is  any  other  person  deriving  the  pos- 
session from  such  tenant,  estopped  by  such  acknowledgment."  A 
jDarty  in  possession   of  lands   recognizing  the  title  of  a    claimant 

'  Burhans  v.  Van   Zandt,  7  N.  Y.  =  Jackson  v.  Britton,  4  Wend.  507. 

523;   Flanagan   v.    Pearson.   61    Tex.  » Jack.son    v.    Cuerden,    2    Johns. 

302;  Assoc.  V.    Whitmore,  75  Me.  11;  Cases,    353;    Strong  v.    Waddell,  56 

Whiting  V.  Edmunds,  94  N.  Y.   309;  Ala.  471;    Vancleave  v.    Wilson,    73 

Tylei-  V.  Davis,  01  Tex.  674;  Houston  Ala.  387. 

V.    Ferris,    71   Ala.    570  ;    Bishop   v.  ■*  Jackson  v.  Croy,  13  Johns.  427. 

Lalouette,  67  Ala.  197.  »  Jackson  v.  Leek,  12  Wend.  105. 


1296  The  Law  of  Estoppel. 

and  agreeing  to  purchase,  may  subsequently  deny  such  title,  set 
up  title  in  himself,  and  show  that  his  acknowledgment  was  pro- 
duced by  imposition,  or  made  under  a  misapprehension  of  his 
rights ;  but  a  party  entering  into  possession,  under  an  agreement 
to  purchase,  cannot  dispute  the  title  of  him  under  whom  he  enters, 
until  after  a  surrender  of  the  possession.  So  long  as  the  ordinary 
relation  of  vendor  and  vendee  exists,  the  possession  of  vendee 
cannot  be  adverse  to  his  vendor.' 

§  1160.  When  the  heir  apparent  conveys  land  by  deed,  with 
covenants  of  warranty,  and  afterward  inherits  the  property,  he 
will  be  estopped  from  setting  up  an  adverse  possession  against 
his  grantee :  but  a  purchaser  at  the  sheriff's  sale,  under  a  judg- 
ment against  the  heir,  under  such  circumstances,  may  claim  an 
adverse  possession  against  the  grantee  of  such  heir.  This  is  upon 
the  ground  that  an  estoppel  does  not  bind  strangers.  The  heir, 
M'hen  he  conveyed,  although  he  had  no  title,  by  his  conveyance 
recognized  a  title  in  his  grantee  and  warranted  the  same  to  him  ; 
but  the  purchaser  at  the  sheriff's  sale  is  a  stranger  in  respect  to 
the  matter  that  is  alleged  as  an  estoppel  in  the  deed.  He  is  not 
a  party  to  it,  and  his  title  is  in  no  way  derived  from  it.  He  relies 
upon  no  act  of  the  grantor,  performed  subsequent  to  the  execu- 
tion of  the  deed,  to  give  validity  to  his  title,  and  has  in  no  way 
recognized  the  title  of  the  judgment  debtor's  grantee.  He  is  not, 
therefore,  estopped  from  claiming  an  adverse  possession  against 
the  grantee  of  the  judgment  debtor.^  But  a  judgment  debtor 
remaining  in  possession  of  land  sold  under  the  execution  against 
him  will  not  be  allowed  to  set  up  an  adverse  possession  against 
the  purchaser  at  the  sheriff's  sale.  And  the  possession  of  one 
holding  under  a  judgment  debtor  by  a  conversance  subsequent  to 
the  lien  of  the  judgment,  cannot  be  set  up  as  adverse  to  the  pur- 
chaser of  the  premises  at  sheriff's  sale  under  such  judgment.'' 
And  one  who  enters  undei-  a  title  from  a  party  subsequent  to  a 
judgment  against  him,  though  ihe  title  comes  to  the  party 
claiming  in  ejectment,  cannot  set  up  another  title,  but  is  estop- 
ped from  denying  the  title  of  the  judgment  debtor  from  whom 
betook  a  conveyance  and  entered  into  possession.* 

'  Jackson  V.  Spear,  7  "Wend.  401.  ^Jackson    v.    Hinman,    10    Johns. 

2  Jackson  v.  Bradford,  4  AYcnd.  617.      292 ;  Buibans  v.  Van  Zandt,  7  N.  Y. 
'  Jackson  v.  Collins,  3  Cow.  89.  523. 


Adverse  Possession.  1297 

§  1161.  "When  two  or  more  persons  have  a  joint  claim 
to  property,  the  community  of  their  interests  creates  a  mutual 
obligation  that  neither  shall  do  anything  to  the  prejudice  of  the 
other.  An  expenditure  by  one  upon  the  subject  of  their  com- 
mon interest  inures  to  the  benefit  of  all ;  and,  on  the  other 
hand,  all  are  bound  to  contribute  toward  that  expenditure. 
JS^either,  will  be  permitted,  without  the  consent  of  the  others,  to 
buy  in  an  outstanding  title,  and  appropriate  the  whole  subject  to 
himself,  and  thus  undermine  and  oust  his  companion.  "  This,'' 
saj's  Chancellor  Kent,  ''  would  be  repugnant  to  a  sense  of  refined 
and  accurate  justice.  It  would  be  immoral,  because  it  would  be 
against'the  reciprocal  obligation  to  do  nothing  to  the  prejudice  of 
each  other's  equal  claim,  which  the  relationship  of  the  parties 
created.  Community  of  interest  produces  a  community  of  duty, 
and  there  is  no  real  difference,  on  the  ground  of  policy  and 
justice,  whether  one  co-tenant  buys  up  an  outstanding  incum- 
brance, or  an  adverse  title,  to  disseise  and  expel  his  co-tenant.'" 
And  the  same  eminent  jurist  says  in  another  case  :  "■  It  is  a  gen- 
eral principle  that,  if  a  mortgagee,  executor,  trustee,  tenant  for 
life,  etc.,  who  has  a  limited  interest,  gets  an  advantage  by  being 
in  possession  or  '  behind  the  back'  of  the  party  interested  in  the 
subject,  he  shall  not  retain  the  same  for  his  own  benefit,  but  hold 
it  in  trust. "^ 

§  1162.  The  mutual  estoppel  between  mortgagor  and  mort- 
gagee, by  which  the  mortgagor  is  estopped  from  setting  up  an 
outstanding  title,  whether  originally  adverse  or  arising  from  his 
own  prior  grant  or  mortgage  against  the  mortgagee,  and  each 
compelled  to  hold  in  subordination  to  the  rights  of  the  other,  is 
founded  upon  the  same  principle  as  that  which  exists  between 
vendor  and  vendee,  and  grows  out  of  the  injustice  of  using  a 
possession  acquired  for  one  purpose,  for  one  of  a  difi^erent  nature, 
to  the  prejudice  of  the  party  from  whom  it  was  received.' 

'  Van  Horn  v.  Fonda,  5  Johns.  Ch.  Reed  v.  Sheeply,  6  Vt.  602;   Wires  v. 

388;    Rui>p   v.    Orr,   31   Pa.  St.  517;  Nelson,  26  Vt.  13 ;  Barber  v.  Harris,  15 

Ferrers  v.  Forrers,  29  Gratt.  134.  Wend.  615;  Osborne  v.  Tunis,  25  N.  J. 

■^  Ilolridge    v.    Gillespie,    3    Johns.  L.  633;  Doe  v.  Clifton,  4  A.  &E.  809; 

Ch.  30;  Baker  v.  Whiting,  3  Sumner,  Doe  v.  Vickers,  4  A.  &  E.  783;   Clark 

475.  V.  McClure,  10  Gratt.  305;   Green   v. 

3  Addu-son  v.  Crow,  5  Dana,  271;  Munson,  9  Vt.  37;  Moss  v.  Gallimore, 
Vol.  I.— 83 


1298  The  Law  of  Estoppel. 

§  llfiS.  To  authorize  the  ])resumption  of  a  grant,  the  enjoy- 
ment of  the  easement  must  not  only  be  uninterrupted  for  the 
period  of  twenty  years,  but  it  must  be  adverse,  not  by  leave  or 
favor,  but  under  a  chiini  or  assertion  of  riglit,  and  it  must  be  with 
knowledge  uiid  acquiesoenee  of  the  owner.'  The  exclusive  use 
of  flowing  water  for  twenty  years  is  a  conclusive  presumption  of 
right."  In  Vermont,  title  acquired  b}'  fifteen  years'  adverse  pos- 
session, is  as  perfect  for  all  purposes  as  though  derived  by  deed, 
and  no  parol  transfer,  surrender  or  declaration  of  the  person  so 
acquiring,  can  have  any  effect  upon  it.  He  can  convey  it  only  by 
a  deed  executed  according  to  the  requirements  of  the  statute.' 

j^  1164,  In  cases  of  estoppel  in  pais,  the  rule  of  law  merely 
attaches  itself  to  the  circumstances ;  when  proved  it  is  not 
deduced  from  them,  it  is  not  a  rule  of  inference  from  testimony, 
but  a  rule  of  protection  as  expedient,  and  for  the  general  good. 
It  does  not  assume  that  all  landlords  have  good  titles,  but  it  will 
be  a  public  and  general  inconvenience  to  suffer  tenants  to  dispute 
them.  Neither  does  it  assume  that  all  averments  and  recitals  in 
deeds  and  records  are  true,  but  that  it  will  lead  to  great  mischief 
if  parties  are  permitted  to  deny  them.  It  does  not  assume,  that 
every  man,  quietly  occupying  land  for  twenty  years  as  his  own, 
has  a  valid  title  by  grant ;  but  it  deems  it  expedient  that  claims, 
opposed  by  such  evidence  as  the  lapse  of  those  periods  affords, 
should  not  be  countenanced ;  and  that  society  is  more  benefited 
by  a  refusal  to  entertain  such  claims,  than  by  suffering  them  to 
be  made  good  by  proof.  In  fine,  it  does  not  assume  the  impos- 
sibility of  things  which  are  possible  ;  on  tJie  contrary,  it  is  founded, 
not  only  on  the  possibility  of  their  existence,  but  on  their  occa- 
sional occurrence,  and  it  is  against  the  mischief  of  their  occurrence 
that  it  interposes  its  protecting  prohibition.* 

1  Dougl.  279;  Birch  v.  Wright,  1  T.  Ga.  518;  Strong  v.   Waddcll,  5G  Ala. 

R.  378;   Partridge  v.  Bere,  5  B.  &  A.  471. 

604;  Pope  v.  Briggs,  9  B.  &  C.  251;  >  Flora  v.  Carbean,  38  N.  Y.  Ill; 

Hitchmiin  v.  Walton,  4  M.  &  W.  409;  Parker  v.  Foot,  19  Wend.  311. 

Doe  V.  Barton,   11  A.  &  E.  307;  Ken-  ^  stillmau  v.  White  Rock  Co.,  3  W. 

shaw  V.  Taylor,  7  Greg.  315;  Boone  v.  &  M.    538;   Taylor   v.    Wilkinson,   4 

Armstrong,   87  Ind.   168;   Thompson  IMasou,  397. 

V.  Justice,  88  N.  C.  269;  Goodwin  V.  ^Hodges    v.    Eddy,    41    Vt.    485; 

Keney,  49  Conn.  282:  Jones  v.  Reese,  Austin  v.  Bailey,  37  Vt.  219;  Tracy  v. 

65  Ala.  134;  Campbell  v.  Tuunell,  67  Atherton,  36  Vt.  303. 

*  Greenleaf  on  Evidence. 


COEPOKATIONS.  1299 


CHAPTER  XIX. 

ESTOPPEL  AS  APPLIED  TO  CORPORATIONS. 

Section  1165.  A  corporation,  in  the  language  of  Chief  Justice 
Marshall,  is  "  an  artificial  being,  invisible,  intangible,  and  exist- 
ing only  in  contemplation  of  law.  Being  the  mere  creature  of 
the  law,  it  possesses  only  those  properties  which  the  charter  of  its 
creation  confers  upon  it,  either  expressly  or  incidental  to  its  very 
existence.  These  are  such  as  are  supposed  best  calculated  to 
effect  that  object  for  which  it  was  created.  Among  the  most 
im])ortant  of  these  are  imniortaliti/^  and,  if  the  expression  may  be 
allowed,  mdividuallty }  A  corporation  being  an  artificial  body, 
an  imaginary  person  of  the  law,  so  to  speak,  is,  from  its  nature, 
incapable  of  doing  any  act  except  through  agents,  to  whom  is 
given  by  its  fundamental  law,  or  in  pursuance  of  it,  every  power 
of  action  it  is  capable  of  possessing  or  exercising.  Hence  the 
rule  has  been  established,  and  may  now  also  be  stated  as  an  indis- 
putable principle,  thar  a  corporation  is  responsible  for  the  acts  or 
nesli^ence  of  its  agents  while  enj2;ao;ed  in  the  business  of  the 
agency,  to  the  same  extent  and  under  the  same  circumstances 
that  a  natural  person  is  chargeable  with  the  acts  or  negligence  of 
his  agent,  if  the  agents  employed  conduct  themselves  fraudu- 
lently, so  that  if  they  liad  been  acting  for  private  employ- 
ers, the  persons  for  whom  they  were  acting  would  have  been 
affected  by  their  fraud  ;  the  same  principles  must  prevail  where 
the  principal  under  whom  the  agent  acts  is  a  corporation.^  Thus 
where  notice  of  the  revocation  of  a  contract  with  a  corporation  is 
prepared  and  served  upon  the  other  party  by  an  attorney  of  the 
company,  with  the  knowledge  and  consent  of  its  manager,  the 

*  Dartmouth  College  v.  TVoodward,  borougli  v.  Bank,  16  East,  6  ;    Smith. 

4  Wlieat.  636.  v.  Birmingham,  &c.   Co.,  1  A.  &  E. 

«  Thayer  V.  Barlow,   19  Pick.  511;  526;   N.    Y.  &c.    Co.    v.  Dryburg,  35 

Bank  v.  Johnson, 24  Me. 490;  Chestnut,  Pa.  St.  298. 
&c.  Co.  V.  Rutter,  4  S.  &  R.  6;   Yar- 


1300  The  Law  of  Estoppel. 

company  and  its  manager  will  be  bound  by  the  act  of  the  attor- 
ney, and  ni)t  be  allowed  to  dispute  the  attorney's  authority.'  So 
where  the  president  and  treasurer  of  a  company,  but  claiming  to 
act  as  individuals,  bought  and  owned  a  certificate  of  a  first  mort- 
gage sale  of  real  estate,  including  lands  to  which  the  company 
had  acquired  the  mortgagor's  title  ;  and  they  executed  to  the 
company  a  release  of  its  said  lands  from  that  sale.  Afterwards, 
C,  trustee  of  certain  creditors  of  the  mortgagor,  held  a  second 
mortgage,  including  plaintiflE's  said  land,  and  prior  to  plaintiff's 
title,  applied  to  said  oliicers  to  purchase  said  certificate  of  sale,  to 
protect  the  interests  of  his  cestui.  They  claiming  still  to  own  the 
certificate,  refused  to  sell  it  to  him,  but  concealed  from  him  the 
fact  that  they  had  released  the  lands  therefrom  to  phiintifl:;  and 
they  allowed  the  trustee  to  pay  to  the  sheriff  a  large  sum  of 
money  to  redeem  from  the  first  mortgage  sale  the  lands  of  the 
company  covered  by  his  mortgage,  and  was  ignorant  of  the 
release  before  mentioned.  The  moneys  thus  paid  to  the  sheriff 
were  by  him  paid  over  to  the  assignee  of  the  certificate  of  sale, 
holding  by  special  assignment  excepting  the  released  premises. 
The  president  and  treasurer,  in  the  transactions  with  the  trustee, 
were  under  a  duty,  as  officers  of  the  company,  to  disclose  the 
facts  which  would  have  prevented  the  trustee  from  paying  the 
money  to  the  sheriff  for  a  fruitless  redemption  ;  and  their  fraud- 
ulent conccuhnent  estopped  the  company  from  claiming  the  bene- 
fit of  such  release.^  To  bind  the  principal,  the  acts  must  be 
within  the  scope  of  the  authority  confided  to  the  agent,  and  must 
accompany  the  act  or  contract  which  he  is  authorized  to  do  or 
make.^ 

•Parmly  V.Buckley,  103  111.  115.  Ins.  Co.,   18  Barb.    69;  Davfudorf  v. 

«  Miinf'g  Co.  V.  Camp,  49  Wis.  130.  B-tudsley,  23  Barb,   6o6;  lus.  Co.  v. 

3  Fairfield     T.    Co.    v.    TLorp,    13  Carpenter,  4   Wis.    20;  Bank  v.  Sco- 

Conn.  173;  Stewart  v.   Bank,  11  S.  &  field,  30  Vt.  590;  Kneeland  v.  Gilman, 

R.  i67;  Haywood  v.  Society.  21  Pick.  24  Wis.  439;  Barker   v.   R.  R.  Co.,  27 

270;  Sterling  v.  Marietta  Co.,  11  S.  &  Vt,  760;  R.  R.  Co.  v.  Reisner,  18  Kas,. 

R.  179;  Bank  V.  Klingsmiili,  7  Watts,  458;  K  R.  Co.  v.   Quigley,    21    How. 

523;  Bank  v.  Tyler.  3  Walls  .Sc  S.  377;  20y;  Green  v.  Omnibus  Co., 7  C.  B.  (N. 

Bank    v.   Davis,  6  Watts  Ai    S.   28.J,  S,)i;90;   Ins.  Cij.  v.  lus.  Co.,  7  Wend. 

Bank  v.  McKee,  2  Pa.  St    321,  Hack  31;  Leggeti  v.N.  J.  &c.  Co.,  1  N.  J.  E. 

ney  v.  lus.  Co.,  4  Pa.  St.  185;  Spauld-  553;  Clark  v.  Wa.sbington,  12  Wheat, 

iugv.  Bank,  9   Pa.  St.  28;    Crump   v.  64;  Essex  v.  Collins,  8  Mass.  299;  Cov- 

Mining  Co.,  7  Gratt.  352;  Cliurcii  v.  ingtonv.  BridgeCo.,  10  Bush,  69;  Ins. 


COKPORATIONS. 


1301 


§  1166.  As  natural  persons  are  liable  for  the  wrongful  acts 
and  neglects  of  their  servants  and  agents,  done  in  the  course  and 
within  the  scope  of  their  employment,  so  are  corporations,  upon 
the  same  grounds,  in  the  same  manner,  and  to  the  same  extent.' 
If  the  directors  of  a  corporation,  in  the  course  of  its  business 
which  it  is  their  duty  to  transact,  induce  a  man,  by  false  or 
fraudulent  misrepresentations,  to  enter  into  a  contract  for  tlie 
benefit  of  the  company,  it  is  bound,  and  can  no  more  repudiate 
the  fraudulent  conduct  of  its  agents  than  an  individual  can.^  To 
fix  the  liability,  it  must  either  appear  that  the  officers  were 
expressly  authorized  to  do  the  act,  or  that  it  was  done  hma  fide 
in  pursuance  of  a  general  authority,  in  relation  to  the  subject  of 
it,  or  that  the  act  was   adopted   or  ratified  by  the  corporation/ 


Co.  V.  Pierce,  75  111.  426;  Union,  &c. 
Co.v.  Bank,  3  Col.T.  248;  Spellman  v. 
Fisliev,  &c.  Co.,  56  Barb.  151;  Lamm 
V.  Association,  49  Md.  233;  Mc- 
Ready  v.  Guardians,  9  S.  &  R.  94; 
Maude  v.  Canal  Co.,  4  M.  &  G.  452; 
Moore  V.  R.  R.  Co.,  4  Gray,  465;  Ry. 
Co.v.  Broom,  6  Exchq.  314;  R.  R. 
Co.  V.  Derby,  14  How.  468;  EUing  v. 
Bank,  11  Wheat.  59;  Exchange  Co. 
V.  Drew,  2  Me.  H.  L.  C.  103;  Bar- 
ring V.  Pierce,  5  W.  &  S.  548;  Tar- 
bell  V.  R.  R.  Co.,  24  Hun,  51;  Orleans 
V.  Piatt,  99  U.  S.  676. 

'  Savings  Inst.  v.  Bank,  80  N.  Y. 
162;  S.  C,  30  Am.  R.  505;  Albert  v. 
Bank,  1  Md.  Ch.  407;  Bank  v.  Bank, 
1  Pars.  Sel.  Cas.  180;  R.  R.  Co.  v. 
Schuyler,  34  K  Y.  30;  Thatcher  v. 
Bank,  5  Sandf.  121;  Bank  v.  R.  R.,  4 
Duer,  480;  Bruflf  v.  Mali,  36  N.  Y. 
200;  Thompson  v.  Bell,  10  Exchq.  10; 
26  Eng.  L.  &  Eq.  530;  Bargate  v. 
Shortridge,  5  H.  L.  Cas.  297;  31  Eng. 
L.  «&  Eq.  44;  Davenport  v.  Davenport, 
43  Iowa,  301;  Chew  v.  Bank,  14  Md. 
299;  Exchange  Co.  v.  Drew,  H.  L. 
1855;  32  Eng.  L.  &  Eq.  1;  Stevens  v. 
R.  R.,  1  Gray,  277;  Blackstock  v.  R. 
R.  Co.,  1  Bosw.  77;  Ricord  v.  R.  R. 
Co.,  15  Neb.  167;  Clark  v.  Bank,  3 
Duer,  241;  Medbury  v.  R.  R.  Co.,  26 


Barb.  564;  Bank  v.  Comen,  37  N.  Y. 
320;  Pickering  v.  Busk,  15  East,  42; 
Bankv.  Aymar,  3  Hill,  262;  Bank  v. 
Bank,  10  Wall.  649 ;  R.  R.  Co.  v. 
Quigley,  21  How.  607;  Gofif  v.  R.  R. 
Co.,  3  Ell.  &  E.  672;  Porter  v.  R.  R. 
Co.,  34  Barb.  353;  Davis  v.  Bank,  2 
Bing.  293. 

2  Burnes  v.  Pennell,  2  H.  L.  C.  479; 
Ranger  v.  Great,  &c.  Co.,  5  H.  L.  C. 
86;  Exchange  Co.  v.  Drew,  2  Macq. 
125;  Meux  v.  Case,  2  D.  M.  &  G.  522; 
Nlcoll's  Case,  5  D.  &  J.  387;  R.  R.  Co, 
V.  Conybeare,  9  H.  L.  737;  Henderson 
v.  R.  R.  Co.,  17  Tex.  560;  Bank  v. 
Peck,  29  Conn.  384;  Crump  v.  Mining 
Co.,  7  Gratt.  352;  R.  R.  Co.  v.  Gam- 
mon, 5  Sneed,  567;  Hester  v.  Mem- 
phis, &c.  Co.,  32  Miss.  378;  Revers  v. 
Plank  R.  Co.,  30  Ala.  92;  N.  O.  &c. 
Co.  V.  Williams,  16  La.  Ann.  315; 
Mayor  v.  Norman,  4  Md.  352;  Bank  v. 
Bank,  10  Gray,  532. 

3  Thayer  v.  Boston,  19  Pick.  516; 
Mitchell  V.  Rockland,  41  Me.  363;  Da- 
vis V.  Bangor,  42  Me.  522;  Roe  v.  R. 
R.  Co.,  7  Exch.  36;  R.  R.  Co.  v. 
Broom,  6  Exch.  314;  Coal  Co.  v.  Me- 
gargel,  4  Pa.  St.  324;  Vanderbilt  v. 
Richmond  T.  Co.,  2  N.  Y.  479;  Wat- 
eon  V.  Bennett,  12  Barb.  196;  Thomp- 
son v.  Bank,  5  Bosw.  293;  Edwards 


1302 


The  Law  of  Estoppel. 


"Where  a  person  is  held  out  by  a  corporation  as  one  of  its  officers, 
as  an  officer  or  agent,  or  if  he  is  pennitted  to  act  as  such  without 
objection  for  any  length  of  time,  or  iiis  services  have  been 
accepted  by  the  corporation,  it  is  inimaterial  wiiether  he  has 
received  a  specific  appointment  from  the  board  of  directors  or 
not,  the  company  is  bound  by  his  acts,  where  others  have  relied 
thereon  in  their  dealings  with  the  corporation.' 

§  1167.  If  its  agents  in  the  line  of  their  employment  are 
guilty  of  falsehood  and  fraud,  their  principal  is  liable  for  the  con- 
quences  which  may  flow  therefrom.  If  they  commit  a  fraud  in 
the  course  of  their  employment,  and  while  acting  in  the  business 
of  their  principal,  the  parties  injured  by  their  misconduct  or 
fraud  can  resort  for  redress  to  the  persons  who  clothed  them  with 
the  power  to  act  in  their  behalf,  and  who  have  received  the 
benefits  resulting  from  their  agency.  It  is  civilly  responsible  for 
damages  occasioned  by  an  act,  as  a  trespass  or  a  tort,  done  at  its 
command  by  its  agent,  in  relation  to  a  matter  within  the  scope 
of  the  purposes  for  which  it  was  incorporated." 


V.  Ry.  Co.,  L.  R.  oC.  P.  445;  Goff  v. 
Ry.  Co.,  3  Ell.  &  E.  G72;  Giles  v. 
Ry.  Co.,  2  Ell.  &  B.  822;  IMoore  v. 
Ry.  Co.,  L.  R.  8  Q.  B.  36;  Brewery 
Co.  V.  Ry.  Co.,  L.  R.  9  Q.  B.  468; 
Walker  v.  Ry.  Co..  L.  R.  5  C.  P.  640; 
Bayley  v.  Ry.  Co.,  L.  R.  7  C.  P.  415; 
Bolingbroke  v.  Board,  L.  R.  9  C.  P. 
575;  R.  R.  Co.  v.  Wetmore,  19  Ohio 
St.  110. 

'  Walker  v.  Railway  Co.,  47  Mich. 
338;  Burton  v.  Burley,  9  Biss.  253. 

^  Duncan  v.  Canal  Co.,  3  Starkie, 
50;  Smith  v.  Gas  Co.,  1  A.  &  E.  526: 
Rex  V.  Medley,  6  C.  &  P.  292;  Mannd 
V.  Canal  Co.,  1  Car.  &  M.  606;  Regina 
V.  R.  R.  Co.,  2  Gale  &  D.  236;  Ry. 
Co.  V.  Broom,  6  Exchq.  314  ;  Hawkins 
V.  Steamboat  Co.,  2  Wend.  452;  Beach 
V.  Bank,  7  Cow.  485;  New  York  v. 
Bailey,  2  Denio,  433;  Hay  v.  Colioes 
Co.,  3  Barb.  42;  Watson  v.  Bennett, 
13  Barb.  196  ;  Kneass  v.  Bank,  4  Wash. 
C.  C.  106;  Lyman  v.  Bridge  Co.,  2 
Aik.  255;  Rabassa  v.  Nav.  Co.,  3  La. 


An.  461 ;  Goodloe  v.  Cincinnati, 4  Ohio, 
513;  Smith  v.  Cincinnati,  4  Ohio,  414; 
]McCroady  v.  Guardians,  9  S.  &  R. 
94 ;  McKim  v.  Odom,  3  Bland.  Ch. 
421 ;  Humes  v,  Knoxville,  1  Humph. 
403;  Edwards  v.  Bank,  1  Fla.  136; 
Bank  v.  Bank,  1  Par.sons  Sel.  Cas.  251; 
Whiteman  v.  R.  R.  Co.,  3  Harr.  514; 
TcnEyckv.  Canal  Co.,  3  Harr.  200; 
Underwood  v.  Lyceum,  5  B.  Jloa. 
130 ;  Hamilton  Co.  v.  Cincinnati  T. 
Co.,  Wright  (O.)603;  Akron  v.  Mc- 
Comb,  18  Ohio,  229;  Riddle  v. 
Proprietors,  7  Mass.  187;  Thayer  v. 
Boston,  19  Pick.  516;  Carman  v.  R. 
R.  Co.,  4  Ohio  St.  399:  Moore  v.  R. 
R.  Co.,  4  Gray,  465  ;  McDougald  v. 
Bellamy,  18  Ga.  411:  Green  v.  Omni- 
bus Co.,  7  C.  B.  (N.  S.)  290  ;  Ramsden 
V.  R.  R.,  104  Mass.  117;  Goddurd  v. 
R.  R.,  57  Me.  202:  R.  R.  v.  Dunn,  19 
Ohio  St.  162  ;  Tcbbutt  v.  Ry.  Co.,  L. 
R.  6  Q.  B.  73  ;  R.  R.  Co.  v.  Chappell, 
61  Ala.  527;  Williams  v.  Ins.  Co.,  57 
IVIiss.    579;    R.    R.    Co.   v.  Bank,  60 


Corporations.  1803 

§  1168.  Estoppels  technically  so  called,  and  estoppels  iVi 
pais  operate  for  and  against  corporations.  A  corporation  is 
bound  by  an  estoppel  and  has  no  more  right  to  rescind  a 
contract  once  legally  made,  than  an  individual  has.  The  same 
presumptions  which,  by  general  rules  of  evidence,  are  con- 
tinually made  in  respect  to  private  persons  aud  public  officers, 
that  all  things  are  rightly  done,  are  applicable  to  corporations.' 
Thus,  a  corporation,  duly  executed  to  plaintiff  a  real  estate 
mortgage,  for  valuable  consideration,  which,  through  mutual 
mistake  of  parties,  misdescribed  the  premises  intended  and 
agreed  to  be  mortgaged.  Plaintiff  caused  the  mortgage  to  be 
duly  recorded.  One  of  the  directors,  who  participated  in  the 
giving  of  the  mortgage  and  in  the  mistake,  afterwards  obtained  a 
judgment  against  the  corporation,  and  duly  docketed  the  same, 
so  as  to  make  it  a  lien  upon  the  premises,  before  the  discovery 
of  the  error.  In  an  action  by  plaintiff  against  the  corporation 
and  such  director  to  correct  the  error  and  to  foreclose  his  mort- 
gage as  a  prior  lien  to  the  judgment,  the  director  is  estopped 
from  contesting  the  relief  sought.'' 

§  1169.  A  corporation,  quite  as  much  as  an  individual,  is  held 
to  a  careful  adherence  to  truth  in  their  dealings  with  mankind, 
and  cannot,  by  their  representations  or  silence,  involve  others  in 
onerous  engagements,  and  then  defeat  the  calculations  and  claims 
which  their  own  conduct  has  superinduced.' 

"  If  one  stand  by  and  encourage  another,  though  but  passively, 

Md.  36;  Ins.  Co.  v.  Ins.  Co.,  7  Wend.  v.  Schuyler,  34  N.  Y.  30;'  Laurensou 

31 ;   Ins.    Co.    v.    Dry  Dock  Co..  31  v.  State,  7  H.  &  J.  343;  Bank  v.  Bank, 

La.  An.  149;  Goodspeed  v.  Bank,   22  16  N«  Y,   135;  Griswold    v.    Haven, 

Conn.  541;  Bissell  v.  R.  R.  Co.,  22  N.  25  N.  Y.  602  :   Bank  v.  Mouteath,  26 

Y.  305;  Bank  v.  Johnson,  24  Me.  490;  K  Y.  509;  Bank  v.  Cornen,  37  N.  Y. 

R.    R.   Co.  V.  Quigly,  21    How.  209;  320;    Bank   v.  Turquand,  6   E.  &  B. 

Whitfiekl   V.   Ry.    Co.,  E.    B.    &  E.  327;  Supervisors  v.  Schenck,  5  Wall. 

115;    Ranger  V.  Ry.   Co.,   5  H.  L.  C.  784;  Gelpcke  v.  Dubuque,  1  Wall.  203. 

72;  Swan   v.  North,  &c.  Co.,  7   H.  &  '  Jewett  v.    Alton,    7  N.   H.    257; 

N.    603;   Carter   v.  Machine   Co.,  51  Society  v.  Philadelphia,  31  Pa.  St.  135; 

Md.    290;   Bank  v.    Bank,  10  Wall.  Swartz  v.  Fallouts,  14  La.  An.  243; 

644 ;  Fay  v.  Noble,  12  Cush.  1 ;  Rail-  Sherman  v.  Fitch,  98  Mass.  59;  Hil- 

way  Co.,   in  re,   L.  R.   3  Q.  B.  594;  lard  v.  Goold,  34  N.  H.  230;  Grant  v. 

Webb  V.  Commissioners,  L.   R.  5  Q.  Davenport,  18  Iowa,  178. 

B.  641;  Ward  v.    Ry.  Co.,  105  Eng.  "  Gill  v.  Russell,  26  Minn.  363. 

Com.  Law  2  E.  &  E.  823;  R.  R.  Co.  s  Zubriskie  v.  Ry.,  23  How.  381. 


1304  The  Law  of  Estoppel. 

to  lay  out  money  under  an  erroneous  opinion  of  title,  or  undei 
the  obvious  expectation  that  no  obstacle  will  afterward  be  inter- 
posed in  the  way  of  his  enjoyment,  the  court  will  not  permit  any 
subsequent  interference  with  it  by  him  who  formerly  promoted  and 
encouraj^ed  those  acts  of  which  he  now  either  complains  or  seeks 
to  obtain  the  advantage.'  Thus,  in  a  late  case  where  a  railroad 
company  claimed  an  exclusive  right  to  a  certain  line,  the  court 
said,  'after  so  many  years  passively  encouraging  other  companies 
to  expend  their  money  and  means  in  the  construction  of  a  road,  it  is 
too  late  now  for  the  appellant  to  claim  that  it  only  has  a  franchise 
to  build  it."  The  case  of  the  Erie  R.  Co.  v.  Del.  Lack.  &  West- 
ern, and  Morris  &  Essex  E,.  Cos.,  supra^  is  very  analogous  to  this. 
In  that  case  the  chief  justice,  in  delivering  the  opinion  of  the  court, 
said  :  '  The  case  is  this  :  The  complainants  claim  the  exclusive 
right  to  a  railroad  between  the  cities  of  Paterson  and  Hoboken  ; 
they  stood  by  and  saw  the  defendants  build,  within  sight  of  their 
own  road,  a  rival  parallel  road  this  whole  distance,  at  a  cost  of 
many  millions  of  dollars  ;  they  expressed  no  dissent,  and  gave  no 
warning  ;  and,  finally,  they  sold,  for  a  large  sum  of  money,  a  part 
of  their  own  land  to  help  the  construction  of  this  road,  whicli,  it 
is  now  claimed  has  no  rightful  basis  whatever.  In  my  estimation 
these  facts  are  amply  sufficient  to  debar  the  complainants  from 
ever  calling  in  question  the  lawfulness  of  this  structure  which  has 
been  erected,  not  only  thi'ongh  the  passiveness  of  the  complain- 
ants, but  by  their  active  assistance.' '" 

§  1170.  In  a  recent  case  in  England  a  statute  declared  that 
unless  certain  things  were  done  no  shares  of  a  joint  stock  com- 
pany should  be  issued  excepting  for  cash,  and  all  which  should 
be  issued  otherwise  should  bo  subject  to  assessment.  Shares 
were  issued  as  "  paid  up,"  and  wore  bought  by  a  hona  fide  pur- 
chaser. The  com])any  and  its  liquidator  were  held  estopped  to 
prove  that  the  statute  had  not  been  followed."  In  that  case  a 
very  able  judge  says  "  that  the  doctrine  of  estoppel  in  pais  is  a 

>  Canal  Co.  v.  King.  16  Bcav.  630.      169;  R  R.  Co.  v.  Gas   Co.,  43  Iowa, 

»  Plitchen  v.  Ry.,  69  Mo.  224;  R.  R.      301. 
Co.  V.  R.  R.  Cos.,  21  N.  J.   Eq.  283;         » R.  R.  Co.  v.   R.  R.  Co.,   36  Ark. 
R.  R.  Co.   V.   Piudden,  20  N.  J.  Eq.      663. 

530;  Goodia  V.  CanulCo. ,  18  Ohio  St.         ■•  Burkinsbaw  v.    NicoUs,   3  App. 

Cas.  1004. 


CORPOEATIONS.  1305 

most  equitable  doctrine,  and  one  without  which  the  law  of  the 
country  could  not  be  satisfactorily  administered. 

'•  When  a  person  makes  to  another  the  representation,  '  I  take 
upon  myself  to  say  such  and  such  things  do  exist,  and  you  may 
act  upon  the  basis  that  they  do  exist,'  and  the  other  man  does 
really  act  upon  that  basis,  it  seems  to  me  it  is  of  the  very  essence 
of  justice  that,  between  those  two  parties,  their  rights  should  be 
regulated,  not  by  the  real  state  of  the  facts,  but  by  that  conven- 
tional state  of  facts  which  the  two  parties  agree  to  make  the  basis 
of  their  action  ;  and  that  is,  I  apprehend,  what  is  meant  by  estop- 
pel injycbis  or  homologation." 

This  doctrine  has  been  applied  by  the  supreme  court  of  the 
United  States  in  a  large  class  of  cases  where  the  facts  are  much 
more  open  to  public  observation  than  are  the  votes  of  a  private 
corporation,  in  wdiich  counties  and  towns  having  power  to  issue 
bonds  upon  certain  terms  and  conditions  are  held  estopped  to 
prove,  as  against  honafide  purchasers,  either  irregularity  or  fraud 
on  the  part  of  their  own  officers  in  issuing  the  bonds,  especially 
if  they  contain  upon  their  face  a  certificate  that  the  terms  of  the 
law  have  been  complied  with.  These  decisions  do  not  depend 
upon  the  negotiable  character  of  the  bonds  excepting  when  there 
is  a  question  of  notice.' 

So,  if  a  cashier  has  authority  to  certify  a  check,  the  bank  is 
estopped  to  say  that  his  certificate  is  false  in  fact.* 

If  a  company  has  issued  a  certificate  of  shares,  it  is  estopped 
to  prove  against  one  who  has  bought  the  shares  in  good  faith,  or 
even  one  who  has  paid  one  call  or  assessment  to  a  third  person 
on  the  strength  of  the  certificate,  that  it  was  issued  improvi- 
dently.'  The  application  of  these  principles  will  be  illustrated 
by  reference  to  many  cases  in  this  chapter. 

§  1171.  Persons  acting  publicly,  as  officers  of  corporations,  are 
to  be  presumed  to  be  rightfully  in  office.     Though  the  charter  or 

'  Com'rs  V.  Aspinwall,  21  How.  539;  312;  Warren  v.  Marcy,    97  U.  S.  96; 

Moran  v.  Com.,  2  Black,  722;  Rogers  See  Post,  Municipal  Bonds. 

V.  Burlington,    3   Wall,    654;   Grand  »  Bank  v.  Bank,  10  Wall.  604. 

Chute    V.    Wincgar,     15  Wall.    355;  ^  Bahia,  etc.  Co.,  in  re,  L.  R   3  Q. 

Com'rs    V.    January,   94  U.    S.    202;  B.  584;  Hart  v.    Frontino,   L.    R.    5 

San  Antonio    v.   MehafEy,   96  U.  S.  Exch.    Ill;    Whiting  v.  Wellington, 

10  Fed.  Rep.  818. 


1306  The  Law  of  Estoppel. 

act  of  incorporation  prescribe  the  mode  in  wliich  the  officers  of  a 
corporation  sliall  be  elected,  and  an  election  contrary  to  it  would 
unquestionably  be  voidable.  Yet  if  the  officer  has  come  in  under 
color  of  riglit,  and  not  in  open  contempt  of  all  right  whatever,  he 
is  an  officer  de facto, — within  his  sj)liere,  an  agent  of  the  corpora- 
tion,— and  his  acts  and  contracts  will  be  binding  upon  it.'  Where 
an  action  has  been  commenced  by  the  officers  de facto  of  a  cor- 
poration, no  other  persons  claiming  a  right  to  act  as  the  officers  of 
the  corporation,  the  defendant  cannot  be  permitted  to  show,  for 
the  purpose  of  defeating  the  action,  tha/t  the  officers  were  illegally 
elected."  Acts  done  by  the  corporation,  which  presuppose  the 
existence  of  other  acts  to  make  them  legally  operative,  are  pre- 
sumptive proofs  of  the  latter.  Grants  and  proceedings  benetlcial 
to  the  corporation,  are  presumed  to  be  accepted,  and  slight  acts 
on  their  part  which  can  be  reasonably  accounted  for  only  upon 
the  supposition  of  such  acceptance  of,  are  admitted  as  presump- 
tions of  the  fact.  If  officers  of  a  corporation  openly  e.xercise  a 
power  which  presupposes  a  delegated  authority  for  the  purpose, 
and  other  corporate  acts  show  that  the  corporation  must  have  con- 
templated the  legal  existence  of  such  authority,  the  acts  of  such 
officers  will  be  deemed  rightful,  and  the  delegated  authority 
presumed.* 

§  1172.  Whenever  a  corporation  neglect  or  dispense  with  any 

>  King  V.  Lisle,  And.  163;  Church  Paul  Div.  v.  Brown,  11  Minn.  3")G; 
V.  Mathews,  4  De.s.  578;  Society  v.  Logan  v.  McAllister,  2  Del.  Ch.  176; 
Eills,  6  Cow.  23;  Church  v.  Lovett,  1  McLaughlin  v.  R.  R.  Co.,  8  Mich.  100; 
Hall.  101;  Lovett  V.  Church,  12  Barb.  State  v.  Sibley,  25  Minn.  387;  Rey- 
67;  Riddle  V.  County,  7  S.  &  R.  892;  nolds  v.  Myers,  51  Yt.  444;  Darren- 
County  V.  Small,  9  Watts  &  S.  320;  bach  v.  R.  R.  Co..  21  Hun,  612;  Olcott 
Kingsbury  V.  Ledyard,  2  Watts  &  S.  v.  R.  R.,  27  N.  Y.  564;  Glidden  v. 
41;  McGargell  v.  Coal  Co.,  4  Watts  &  Unity,  33  N.  H.  571;  Bank  v.  Dan- 
S.  425;  Despatch  Line  v.  Bellamy,  12  dridge,  12  Wheat,  64;  Commonwealth 
N.  H.  205;  Smith  v.  Erb,  4  Gill,  437;  v.  Turnpike  Co.,  3  Pick.  327;  Crump 
Burr  V.  McDonald,  3  Gratt.  215.  v.  U.  S.  &c.  Co.,  7  Gratt.  352;  Com- 

« Association   v.    Baldwin,    1    Met.  monwealth   v.    Cleghorn,    13   Pa.  St. 

359;  Green   v.    Cady,   9   Wend.    414;  113;  Cahill  v.  Kalamazoo,   &c.  Co..  2 

Academy   v.    Liudsey,    6   Ired.    476;  Doug.  (Mich.)  124;  Glass  Co.  v.  Glass 

Atlantic,  &c.  Co.   v.    Johnson,  70  K  Co.,  Ill  Mass.  315;  Merriman  v.  Mc- 

C.  348;  Thompson  v.  Candor,  60  111.  Givenny,   12  Heisk.  494;   Ins.  Co.  v. 

244;  Shewaltcr  v.  Purner,  55  Mo.  218;  Allis,  24  Minn.  75;  R.  R.  Co.  v.  R.  R. 

People  V.  Hills,  1  Lans.  202.  Co.,  59  N.  H.  385. 

Tariotl  V.  Rvors  40   Cal.  614;    St. 


Corporations.  1307 

precautions  which  are  essential  to  their  security,  yet  if  there  is 
sufficient  evidence  of  a  common  consent,  of  a  joint  and  corporate 
act,  they  are  liable  ;  especially  where  individuals  who  have  trusted 
to  the  good  faith  of  the  corporation,  would  be  injured  and 
deprived  of  their  remedy,  if  any  other  construction  of  the  doings 
of  the  corporation  could  be  adopted.'  Thus,  where  the  charter  of 
a  corporation  provided,  that  on  an  intended  transfer  of  shares, 
notice  should  be  given  to  the  company,  and  then  the  director's 
would  be  bound  either  to  purchase  the  shares,  or  grant  their  con- 
sent to  the  intended  transfer,  and  that  no  one  should  become  a 
shareholder  without  this  consent  in  the  form  of  a  certificate, 
signed  by  three  directors.  The  directors  from  the  first,  i.  6.,  for 
ten  years,  never  gave  this  certificate  of  consent  to  any  transfer  ; 
but  the  managing  director  on  the  spot  merely  gave  a  verbal  con- 
sent to  the  vendor's  broker,  and  about  nine-tenths  of  the  original 
shares  had  been  transferred  in  this  informal  way.  S.  having 
transferred  his  shares  to  T.  in  the  same  mode,  and.T.'s  name  hav- 
ing been  entered  as  the  proprietor,  and  T.  treated  as  such  by  tlie 
company,  the  board  of  directors  afterwards  canceled  the  entry  of 
T.'s  name  in  their  share  register  book,  on  the  ground  that  the 
consent  of  the  directors  was  not  given  according  to  the  deed.  S. 
then  filed  a  bill  in  equity,  praying  a  declaration  that  he  had  ceased 
to  be  a  shareholder,  and  praying  an  injunction  against  an  action 
of  scire  facias,  sued  out  against  liim  by  a  creditor  of  the  com- 
pany'. Held,  that  S.  had  ceased  to  be  a  shareholder,  and  was 
entitled  to  the  injunction,  for  that  the  company  could  not  take 
advantage  of  the  informality  of  the  transfer,  their  course  of  deal- 
ing having  been  universal  and  for  their  own  benefit.^     Nor  can  it 

'  Hayden    v.  Middlesex,    10' Mass.  Barb.  358;  Fishmonger's  Co.  v.  Rob- 

401;  Church  v.    Potter,  6   Barb.  576;  ertsou,  5  M.  &G.  131;  Mott  v.   Trust 

Keuterv.  Telegraf ,  &c.  Co.,  6   Ell.  &  Co.,  19  Barb.  568;  Bank  v.  North,  4 

B.  341;  Bargate   v.  Shortridge,  5  H.  Johns.  Ch.   370;  Moss  v.  Rossic,  &c. 

L.  Cas.    294;  Hotel    Co.   v.  Newman,  Co.,  5   Hill,    137;  Potter  v.    Bank,  5 

30  Mo.    118;  Zabriskie  v.   R.  R.  Co.,  Hill,    490;  Suydam   v.  Canal  Co.,   0 

23  How.    381;    Amy    v.    Allegheny,  Hill,  217;  Australian,  &c.  Co.  v.  Mar- 

24  How.     364;    Com'n,  &c.    Co.,  v.  zelti,  32  E.  L.  &  Eq.  57'3. 
Cleveland,  41  Barb.    9;  Ins.    Co.  v.  ■'  Bargate    v.    Shortridge,  31    Eng. 
Smith,  11  Pa.  St.  120;  Conoverv.  Ins.  Law  &  Eq.  44;  Higgs  v.  North.  »&c. 
Co.,  1  N.  Y.  290;  Choteau,  &c.  Co.  v.  Co.,  4  Exchq.    87;    Bremton's    Case, 
Harris,  20  Mo.  382;  Wood  v.  R.  R.Co.,  L.  R.  19  Eq.  302. 

8  N.  Y.  100;  Beers  v.  Glass  Co.,    14 


1308  The  LA^Y  of  Estoppel. 

set  up  liens  or  equities  against  the  transferror.  A  corporation 
cannot  set  u])  in  defense  that  a  certilicate  of  its  organization,  filed 
in  compliance  ^vith  a  statute,  is  false,  nor  can  it  avail  itself  of  its 
omission  to  publish  tlie  certificate  of  its  organization,  or  of  its 
adoption  of  the  name  of  another  corporation,  although  l^oth  acts 
are  in  violation  of  a  statute,  if  it  has  held  itself  out  as  a  corj)ora- 
tion.'  Nor  can  it  set  up  its  failure  to  comply  with  a  statute 
requiring  it  before  commencing  business  to  file  a  certain  certi- 
ficate.^ So,  where  corporators,  without  having  organized,  created 
or  issued  any  stock,  or  paid  any  capital,  pretend  to  be  incorporated 
and  hold  themselves  out  to  the  ])ublic  as  a  corporation,  they  are 
estopped  as  to  those  who  deal  with  them  on  the  faith  of  their 
representations,  to  deny  the  existence  of  the  corporation,^ 

§  1173.  When  an  association  of  persons,  having  assumed  a 
name  which  implies  a  corporate  body,  exercise  the  power  of  a 
corporation,  they  are  estopped  from  denying  their  corporate 
liability."  So  u  bank  organized  under  a  general  banking  law,  is 
estopped  to  deny  the  regularity  of  its  organization.^  Or  if 
organized  under  a  charter  containing  a  disadvantageous  provision 
are  estopped  from  denying  its  validity.^  So,  a  corporation  which 
has  entered  into  contracts  in  its  corporate  capacity,  is  estopped 
when  sued  thereon  to  deny  its  corporate  existence.'  A  corpora- 
tion is  estopped  from  averring  that  officers  who  have  acted  as 
such  were  not  elected  at  a  meeting  duly  held.*  A  corpoi'ation  is 
bound  by  a  contract  which  was  originally  unautliorizcd  if  it  has 
been  executed  by  the  other  party  and  they  have  received  the  con- 
sideration for  their  promise,  and  are  estopped  from  repudiating 
their  obligation,  but  the  other  party  may  enforce  it.°     The  presi- 

'  Doolt'V  V.  Glass  Co.,  15  Gray,  494.  Bauk   v.  ^Yilhll•(],  23  N.  Y.  574;  Buf- 

■■'  JNIeirick  v.  Engine  Co.,  101   Mass.  falo,  etc.   Co.  v.   Cary,  20  N.  Y.  75; 

381.  Dooley  v.  Glass  Co.,"  15  Gray,  494; 

»  Slate  V.  Simonton,  78  N.  C.  57.  Merrick  v.  Engine  Co.,  101  Mass. 385; 

*  Dobson   V.    Simonton,  89  N.     C.  Telegraph  Co.  v.  Eyser,  2  Col.  T.  141; 
492;  Express  Co.  v.  Bedbury,  34    III.  Webb  v.  Comm'rs,  L.  R.  5  Q.  B.  642; 
459  ;  AVhite   v.    State.    79    lud.    273;  Grape  Co.  v.  Small,  40  JId.  395. 
Parrott  v.  Byers,  40  Cal.  614.  ^^  Sampson  v.  jMill  Co.,  36   Me.  78; 

s  Evving  V.  Kobeson,  15  lud.  26.  Partridge  v.    Badger,   25   Barb.   146; 

*  Dolge  V.    Horicou  Co.,  22  Wis.      State  v.  Keoktik,  9  Iowa,  438. 

417;  Plank  R.  Co.  V.  Reynolds,  3  Wis.         »  Bisscll  v.    R.    R.,   22  N.  Y^  258; 
287.  DeGraff  v.  Thread  Co.,  24  Barb.  375; 

'  Callender  v.  R.  R.,  11  Ohio,  316;      Blackburn  v.  R.  R.  Co.,  525. 


Corporations.  1309 

dent  of  a  private  corporation  liaving  as  sucli  executed  a  promissory 
note  in  payment  for  property  purchased  for  the  corporation,  and 
being  afterwards  prosecuted  and  sought  to  be  charged  as  a  stock- 
holder for  the  debt,  he  is  estopped  from  denying  the  power  of 
the  corporation  to  make  the  purchase.'  So,  if  a  corporation  in  one 
action  rely  upon  a  certain  instrument  as  their  deed,  they  are 
estopped  in  another  from  denying  its  validity,*  nor  can  a  corpora- 
tion receiving  the  benefit  of  a  loan  avoid  its  liability  upon  a  mort- 
gage given  to  secure  its  payment  by  denying  the  authority  of 
those  who  contracted  in  its  behalf.'  The  fact  that  the  lender 
knew  that  the  company  intended  the  money  for  an  unauthorized 
use,  makes  no  difference,  so  long  as  the  purpose  itself  is  not  an 
immoral  or  illegal  one."  A  grant  of  a  franchise,  or  any  beneficial 
interest  by  the  legislature  to  a  corporation  or  a  private  person 
constitutes  a  contract  between  the  government  and  the  grantee 
■which  cannot  be  repealed  nor  essentially  impaired  by  a  subsequent 
legislature,*  unless  the- right  to  do  so  is  reserved  in  the  charter  or 
act  creating  it,  without  the  consent  of  the  corporation. 

§  1174:.  The  principle  that  when  a  contract  is  void,  essentially 
from  want  of  power  or  ability,  it  can  be  rendered  valid  by  the 
aid  of  the  doctrine  of  estoppel,  is  applied  in  full  force  when  a 
body  corporate  transcends  the  limitations  imposed  by  its  charter, 
and  the  defect  cannot  be  cured  by  the  acts  or  representations  of 
its  officers  or  agents,  or  even  by  an  express  recital  that  an  author- 
ity exists  which  is  in  fact  wanting.'^  Redress  must  be  sought  in  a 
suit  to  recover  back  the  consideration,  or  an  action  on  the  case 
against  the  persons  guilty  of  the  fraud  ;  although  it  has  been  lield 
that  an  estoppel  may  grov.',  even  under  these  circumstances,  out  of 

'  Moss  V.    Averill,    10  K  Y.  449;  Society  v.  Paddock,  SO  III.  263 ;  Darst 

Ammerman  v.  Wiles,  24  X.  J.  E.  18;  v.  Gale,  83  111.  13G. 

Brown  V.  Tony,  42  K  Y.  Suiter.  1.  *  Bradley  v.   Ballard,  55  111.  413; 

=  R.  R.  V.  Howard,  13  Howard,  308;  West  v.  Board,  82  111.  205;  Humphries 

Scaggs  V.  B.  B.  &  W.,  10  Md.  268.  v.  Association. 

3  R.  R.  Co.  V.   Murray,  15  111.  336;  ^  Biidge  Co.  v  Bridge  Co.,  7  Pick. 

Mining  Co.  v.   Bank,  2  Col.   T.   248;  344;    Dartmouth  Colledge   Cases,    4 

Thomas    v.    R'y   Co.,    104    111.    4(52;  Wheat   636. 

Bradley    v.     Ballard,     55    111.     413;  «  Hood  v.  R.  R.,  21  Conn.  523;  S.C, 

Comm'rs  v.   R.    R.   Co.,  50  Ind.  35;  23  Conn.  621;  Treadwell  -v.   Commis- 

Jones  V.  Guaranty  Co.,  101  U.  S.  628;  sioners,    11  Ohio  S.    183;   Popple  v. 

Brown,  13  Ohio  S.  311. 


1310  The  Law  of  Estoppel. 

a  long  cotinned  acquiescence  in,  or  enjoyment  of  the  fruits  of  the 
contract.'  But  where  tlie  authority  exists,  and  tlie  doubt  is 
whctlier  it  was  regularly  put  forth,  or  the  conditions  precedent  to 
its  exercise  fulfilled,  every  intendment  will  be  made,  ut  res  magis 
valeat,  and  third  persons  will  not  be  required  to  look  beyond  the 
face  of  the  proceedings,  or  the  recitals  in  the  instrument  under 
which  they  claim"  an  objection .  founded  solely  on  the  want  of 
authority  of  the  officers  or  agents  by  whom  the  act  was  done,  or 
agreement  made,  may  be  removed  by  the  subsequent  ratification 
or  acquiescence  of  the  corporation.'  Ratification  of  acts  of  a  com- 
mittee, by  a  corporation,  will  cure  any  defects  in  original  appoint- 
ment.* A  corporation  cannot  affirm  an  act  of  its  agent  in  part, 
and  disaffirm  as  to  the  residue.*  The  Supreme  Court  of  the 
United  States  has  uniformly  held,  when  the  question  has  been 
presented,  that  where  a  corporation  has  lawful  power  to  issue 
negotiable  securities  and  does  so,  the  bonafde  holder  has  a  right 
to  presume  the  power  was  properly  exercised,  and  is  not  bound  to 
look  beyond  the  question  of  its  existence.  Where  the  bonds  on 
their  face  recite  the  circumstances  which  bring  them  within  the 
power,  the  corporation  is  estopped  to  deny  the  truth  of  the 
recital. 

§  1175.  If  a  corporation  ratify  the  unauthorized  act  of  its 
agent,  the  ratification  is  equal  to  a  previous  authority,  as  in' case 
of  natural  persons  ;  no  maxim  being  better  settled  in  reason  and 
law,  than  "  omnis  ratlliahitio  retrotrahitur,  et  tnandato  2>^'if>ri 
mpiiparatur  i''''  where  it  does  not  prejudice  the  rights  of  stran- 
gers.'    Where  officers  of  a  corporation  purchased  property  and 

'  State  V.   Van  Home,  7  Ohio  S.  "  R.  R.  Co.  v.  Schuyler,  34  N.  Y. 

397;  Goshen  v.  Shoemaker,    VZ  Ohio  30;  Conloy  v.  R.  R.  Co.,  45  Tex.  579. 

S.  624;  Mining  Co.  v.  Bank,  2  Col.  T.  «  Fleckner  v.   Bank,  8  Wheat,  363; 

248.  Turnpike  Co.  v.  Collins,  8  Mass.  399; 

•  *  Parish  V.  Wheeler,  22  N.  Y.  479;  Haydenv.  Turnpike  Co.,  10  Mass.  403; 

Moram   v.   Commissioners,  2   Black,  Bank  v.  Bank,  17  Mass.  28;  White  v. 

722.  Maiif'g  Co.,    1   Pick.    220;  Wood   v. 

3  Buckley  v.  Fishing  Co.,  2  Conn.  McCain,  7  Ala.  806;  Taylor  v.  Robin- 

252;  Peck  v.  Ins.  Co.,  22  Conn.  557;  son,  14Cal.396;  Baker  v. Colter, 45 Me. 

Bargate  v.  Shortridge,  31  E.  L.  &  E.  236;  Bank  v.  Loan,  &c.  Co.,  16  Wis. 

44;    Memphis  v.   Gas  Co.,   9   Heisk.  629  ;  Bank   v.    Patterson,    7   Crauch, 

531.  297;  GoJdind  v.    Ry.    Co.,  17  Beav. 

«  Church  V.  Church,  2  Abb.  Pr.  N.  132;    Argenti  v.    San  Francisco,    16 

8.  254;  S.  C,  32  How.  Pr.  335.  Cal.  255;  Cook  v.    Tullis,    18  WaU. 


Corporations. 


1311 


gave  notes  tlierefor  in  the  corporate  name,  and  subseqneutly  the 
company  cLiimed  the  property  and  converted  it  to  their  own  use, 
and  allowed  judgment  by  default  to  be  rendered  against  it  on  one 
of  the  notes  ;  if  the  notes  were  given  without  authority,  these  acts 
W'ere  a  ratification  and  rendered  the  company  liable  on  the  other 
notes.'  So  a  corporation  not  having  at  the  time  the  requisite 
authority  to  make  a  particular  contract,  may  upon  obtaining  such 
authority,  ratify,  by  taking  advantage  of,  or  acting  upon  a  con- 
tract, made  by  an  officer  or  agent,  even  though  at  the  time  it  was 
illegal  and  void.''  The  same  rule  of  agency  applies  to  corpora- 
tions and  individuals  ;  thus,  where  municipal  bonds  are  signed  by 
officers  before  the  expiration  of  their  term  of  office  and  are  sub- 
sequently delivered  by  their  successors,  the  corporations  in  an 
action  on  such  bonds  are  estopped  from  setting  up  the  defense  of 
invalidity  thereto  on  the  ground,  that  they  were  executed  by  par- 
ties without  authority,  their  terms  of  office  having  expired.  The 
delivery  of  such  bonds  is  an  adoption  of  the  signature  as  genuine 
and  estops  the  town  from  impeaching  it.' 


332;  McCracken  v.  San  Francisco,  16 
Cal.  591;  Buckley  v.  Fishing  Co.,  3 
Conn.  252;  Bridge  Co.  v.  Bank,  3  K 
Y.  156;  Everett  v.  U.  S.,  6  Port.  166; 
Bank  v.  Curtis,  24  Me.  38;  Whitwell 
V.  Warner,  20  Vt.  425;  Witte  v.  Fish- 
ing Co.,  2  Conn.  260;  Hoyt  v.  Thomp- 
son, 19  N.  Y.  207;  Bank  v.  Bank,  1 
Ga.  428;  Hoyt  v.  Mining  Co.,  6  N.  J. 
E.  253;  Baker  v.  Cotter,  45  Me.  236; 
Peterson  v.  Mayor,  17  N.  Y.  449; 
Church  V.  Sterling,  16  Conn.  388; 
Bank  v.  Reed,  1  W.  &  S.  101;  Hay- 
ward  V.  Society,  21  Pick.  270;  Des- 
patch Line  v.  Manf'g  Co.,  12  N.  H. 
205  ;  Bank  v.  Sharp,  12  Miss.  75; 
Burrrll  v.  Bank,  2  Met.  176;  Fox  v. 
Liberties,  3  W.  &  S.  103;  Bank  v. 
Bank,  1  Parr.  Sel.  Cas.  207;  Stuart  v. 
Railway  Co.,  15  Beav.  513;  Maclae  v. 
Sutherland,  3  Ell.  &  B.  1 ;  Reuter  v. 
Telegraf  Co.  5  Ell.  &  B.  341 ;  Durar 
V.  Ins.  Co.,  4  N.  J.  171  ;  Emmett  v. 
Reed,  8  N.  Y.  312;  Bank  v.  Bank,  16 
Wis.  120;  Kelsey  v.  Bank.  69  Pa.  St. 


426;  Oliver  v.  Ins.  Co.,  3  Curtis,  277 
Routh  V.  Thompson,  13  East,  274 
Haausom  v.  OUverson,  2  M.  &  S.  485 
Ins.  Co.  V.  Massey,  33  Pa.  St.  221 
Telegraf  Co.  v.  R.  R.,  86  III.  246 
Choteau  v.  Allen,  70  Mo.  290;  Darst 
V.  Gale,  83  111.  136. 

'  Moss  V.  Mining  Co  ,  5  Hill,  137; 
Brown  v.  Winnissimet  Co.,  11  Allen, 
326;  Moss  v.  Aveiill,  10  N.  Y.  449; 
Olcott  v.  R.  R.  Co.,  27  N.  Y.  546; 
Shaver  v.  Bear,  &c.  Co.,  10  Cul.  396; 
McLaughlin  v.  Detroit,  8  Mich.  100; 
Corning  v.  Southland,  3  Hill,  553; 
Couroy  v.  Iron  Co.,  12  Barb.  27; 
Clark  V.  Van  Remisdyk,  9  Cranch, 
158;  Church  v.  Sterling,  16  Conn.  338; 
Chicago,  &c.  Co.  v.  Crowell,  65  111. 
453;  Institution  v.  Slack,  6  Cush.  408. 

^  Gooding  v.  Railway  Co.,  17  Beav. 
132;  Edwards  v.  R'y  Co.,  1  M.  &  C. 
650;  Preston  v.  R'y  Co.,  7  E.  L.  &  E. 
124. 

3  Weyauwega  v.  Ayling,  99  U.  S. 
112;  Bearaan  v.   Duck,  11  M.  &  W. 


1312  The  Law  of  Estoppel. 

§  1176.  A  corporation  is  bouud  bj  a  deed  under  its  seal  duly 
aflBxed,  unless  illegality  or  fraud  can  be  established ;  and  the 
defense,  resting  ou  the  ^Utra  vires  doctrine,  exists  only  when  the 
corporation  is  prohibited  by  law  from  entering  into  the  contract 
upon  which  the  action  is  brought.  "  Corporations,"  said  Barou 
Parke,  in  an  often-quoted  passage,  "  which  are  creatures  of  law, 
are,  when  their  seals  are  properly  affixed,  bound  just  as  individuals 
are  by  their  own  contracts,  and  as  much  as  all  the  members  of  a 
partnership  would  be  by  a  contract  in  which  all  concurred.  But 
where  a  corporation  is  created  by  legislative  enactment,  forjpar- 
ticxdar  purposes,  with  special  powers,  then,  indeed,  another  ques- 
tion arises  ;  their  deed,  though  under  their  corporate  seal  and  that 
regularly  affixed,  does  not  bind  them,  if  it  appear  by  the  express 
provisions  of  the  statute  creating  the  corporation,  or  by  reason- 
able inferences  from  its  enactments,  that  the  deed  \x^s  ultra  vires  ^ 
that  is,  that  the  legislature  meant  that  such  a  deed  should  not  be 
made.  The  question,"  continued  the  learned  judge,  "  appears  to 
me  to  be  simply  this: — Whether  it  can  reasonably  be  made  out 
from  the  statute  that  the  covenant  is  ultra  vir'es,  or,  in  other 
words,  forbidden  to  be  entered  into  by  either  the  plaintiffs  or 
defendants.'" 

§  1177.  The  charter  of  a  corporation,  read  in  connection  with 
the  general  laws  applicable  to  it,  is  the  measure  of  its  powers, 
and  a  contract  manifestly  beyond  those  powers  will  not  sustain 
an  action  against  the  corporation.  But  Mdintever  under  the  char- 
ter and  other  general  laws,  reasonably  construed,  may  fairly  be 
regarded  as  incidental  to  the  objects  for  which  the  corporation  is 

251 ;  Levy  v.  Bauk,  4  Dall.  234;  Bank  Cooper  v.  Meyer,  10  B.  &  C.  468; 
V.  Bank,  10  Wheat.  332;  Woodrufl'  v.  Young  v.  Grole,  4  Biug.  253;  Ingham 
Mnnroe.  33  .Md.  140;  Bank  v.  Keene,  v.  Primiose,  J  C  B.  (^^  8.)  82;  Bank 
53  Mc.  104;  Leach  v.  Buehanan,  4  v.  Stowtll,  123  Ma.ss.  lOG;  Baxendale 
Esp.  226  ;  Greentield  v.  Cialls,  4  v.  Bennett,  L.  K.  3  Q.  B.  D.  525. 
Allen,  417;  Bank  v.  Middlehiuok,  33  '  Bank  v.  Tuiquand,  5  E.  &  B.  248  ; 
Conn.  95;  Howard  v.  Duncan.  3  Lans.  affirmed  in  en  or,  9  E.  &  B.  327;  R. 
174.  Brook  v.  Hook,  L.  R.  1  W  L.  R.  Co  v.  R  R.  Co.,  6  H.  L.  Cas.  113; 
200,  Wilkinson  v.  Stoney,  1  J.  &  S.  Ager  v.  Assuruuce  Society,  3  C.  B. 
509,  Robarts  v.  Tucker,  16  Q.  B.  577,  (N.  S.)  725;  Assurance  Co.  v.  Hard- 
Arnold  V.  Bank,  L.  R.  1  C.  P.  D.  ing,  18  E.  L.  &  E.  181;  Batenian  v. 
578;  JVIeacher  v.  Fort,  3  HUl  (S.  C.)  The  Mayor,  3  H.  «&  N.  572;  Simpson 
227;  Hartsman  v.  HeusLaw,  11  How.  v.  Holel  Co.,  G  Tr.  (N.  S.)^5. 
177;    Price    v.    Neal,    3  Burr.    1354, 


COEPOPRATIOI^S.  1333 

created,  is  not  to  be  taken  as  proliibited/  A  corporation  lias  no 
implied  power  to  clumge  the  auionut  of  its  capital  as  prescribed 
in  its  charter,  and  all  attempts  to  do  so  are  void.^  But,  where  the 
action  of  a  corporation  is  lawful,  the  motives  therefor,  or  the 
expediency  thereof,  is  not  a  subject  of  judicial  inquiry/  So, 
where  the  charter  originally  limited  the  aniount  of  the  capital 
stock,  but,  on  certain  conditions  prescribed  by  the  legislature, 
authority  was  given  to  increase  it,  and  j^arties  claiming  the  right 
to  do  so,  complied  with  the  required  conditions,  and  issued  addi- 
tional stock,  as  between  purchasers  or  holders  and  the  corporation 
or  its  creditors,  the  former  were  estopped  from  denying  the  valid- 
ity of  their  proceedings,  or  the  validity  of  the  stock  so  issued. 
If,  through  fraud  or  misrepresentation,  parties  purchase  such 
stock,  they  ma}'  repudiate  their  contract  of  purchase,  and  be 
relieved  of  liability,  provided  they  act  promptly  and  are  without 
laches.  But  when  repeated  assessments  have  been  paid  by  them, 
or  they  have  in  person  or  by  proxy  taken  part  in  the  meetings  of 
stockholders,  continuing  to  hold  such  stock  a  year  or  more,  and 
until  the  insolvency  of  the  conjpany,  it  will  be  too  late  to  obtain 
relief  upon  allegations  of  fraud  or  misrepresentation.^ 

§  117S.  A  corporate  act  is  xdtra  vires  when  it  is  not  within 
the  scope  of  the  powers  of  the  corporation  to  perform  it,  under 
any  circumstances,  or  for  any  purpose,  or  with  reference  to  the 
rights  of  certain  parties,  when  the  corporation  is  not  authorized 
to  perform  it  without  their  consent,  or  with  reference  to  some 
specific  purpose,  when  it  is  not  authorized  to  perform  it  for  that 
])urpose,  although  fully  within  the  scope  of  the  general  powers  of 
the  corporation,  with  the  consent  of  the  parties  interested,  or  for 
some  other  purpose.  When  a  contract  is  not  necessarily  beyond 
the  scope  of  the  power  of  the  corporation  by  whicli  it  was  made, 
it  will,  in  the  absence  of  proof  to  the  contrary,  be  presumed  to  be 
valid.     Corporations  are  presumed  to  act   within   their  powers. 

'  Thomas   v.   R.   R.,   101    U.  S.  71;  AUcrton,  18  Wall.  233;   Stace's  Case, 

Att'y  Geii'l  v.  Ry.,  5  App.  Cas.  473  ;  L.  R.  4  Cli.  App.  682. 

Davis  V.  R.  R.,  131  Mass.  258  ,   R.  R.  ^  Ogiesby  v.  Attiill,  105   U.  S.  605; 

Co.  V.  Steamboat  Co.,  107  U.   S.  98.  Bailey  v.  R.  R,  12  Beav.  433. 

'■'  Scovill  V.  Thayer,  105   U.  S.  148;  ■•  L'pton  v.  Jackson,  1  Flip.  C.  Ct. 

Bank  v.  R.  R.,  13  N.  Y.  599;   R.  R.  413;  Ross  v.  R.  R.  Co.,  77  111.  127 
V.  Schuyler,   34  N.  Y.  30;  R.  R.  v. 
Vol.  L— 83 


J314 


The  Law  of  Estoppel. 


The  doctrine  of  iiltra  vires,  when  invoked  for  or  against  a  corpo- 
ration, ehonld  not  be  allowed  to  prevail  where  it  would  defeat 
;he  ends  of  justice,  or  work  a  legal  wrong,  if  such  results  can  be 
avoided.'  AVhile  courts  are  inclined  to  maintain  with  vigor  the 
limitations  of  corporate  actions,  wherever  it  is  a  question  of 
restraining  the  corporation  in  advance  from  passing  beyond  the 
boundaries  of  their  cjuirters,  they  are  equally  inclined,  on  the 
other  hand,  to  enforce  agaii>st  them  contracts,  though  ultra  vires, 
of  which  they  have  received  the  benefit.  This  is  demanded  by 
the  plainest  principles  of  justice." 

§  1179.  Where  a  contract  has  in  good  faith  been  fully  per- 
formed, and  nothing  remains  to  be  done  by  the  other  party  or  the 
party  seeking  relief,  or  all  the  shareholdei's  have  acquiesced  in  its 
performance,  the  plea  of  ultra  vires,  or  mere  want  of  power,  is 
not  available  by  the  corporation  in  an  action  brought  against  it 
for  not  performing  its  portion  of  the  contract.'     The  objection  to 


'  Water  Co.  v.  Murphy's  Co.,  32 
Cal.  620;  R.  H.  Co.  v.  R.  R.  Co.,  29 
N.  J.  E.  542;  Arms  Co.  v.  Barlow,  63 
N.  Y.  62;  R.  R.  Co.  v.  McCarthy,  96 
U.  S.  258;  Saa  Antonio  v.  Mehaliy, 
90  U.  S.  312;  McPhersou  v.  Foster,  43 
Iowa,  48;  Whilney  v.  Wyman,  101  U. 
S.  392  ;  Bank  v.  Graham.  100  U.  S. 
699;  Wright  v.  Pipe  Line  Co.,  101  Pa. 
St.  204;  S.  C,  47  Am.  R.  701;  Norwich 
V.  R.  R.  Co.,  4  E.  &  B.  397;  Atkin  v. 
Blanchard,  32  Barb.  527;  Bank  v. 
Turquand,  6  E.  &  B.  327;  Ttiylor  v. 
Ry.  Co.,  L.  R.  2  E.xchq.  336;  Russell 
V.  R.  R.  Co.,  22  N.Y.  238  ;  Zdlcrbach 
V.  Ditch  Co.,  37  Cal.  543;  Parisli  v. 
Wheeler,  22  N.  Y.  494;  Eaton  v. 
Aspinwall,  19  N.  Y.  119;  State  v. 
Van  Ilorne,  7  Ohio  St.  327;  Tash  v. 
Adams,  10  Cush.  252;  Tliompson  v. 
Lambert,  44  Iowa,  239;  Gould  v. 
Venice,  29  Barb.  442;  Bradley  v.  Bal- 
lard, 55  111.  413;  Mauf'g  Co.  v.  Can 
ney,  54  N.  H.  295;  ]\IcBroora  v. 
Lebanon,  31  Ind.  268;  Hitchcock  v. 
Galveston,  96  U.  S.  351;  R.  R.  Co.  v. 
Pratt,  22  Wall.  123;  Machine  Co.  v. 


Ry.  Co.,  20  Mo.  672;  Bissell  v.  R.  11. 
Co.,  22  K  Y.  258;  Hill  Co.  v.  R.  R. 
Co.,  104  Mass.  123. 

•■'2  Kent's  Comm.  (11th  ed.)  381; 
Parish  v.  Wheeler,  22  N.  Y.  494; 
White  V.  Bank,  22  Pick.  181;  R.  R. 
Co.  V.  Trausp.  Co.,  83  Pa.  St.  160; 
Ajms  Co.  V.  Barlow,  63  N.  Y.  62; 
Groff  V.  Thread  Co.,  21  K  Y.  124; 
Firth  V.  La  Rue,  15  Barb.  322;  Gould 
V.  Oneonta,  3  Hun,  401;  Hazolhurst 
V.  R.  R.  Co.,  43  Ga.  13;  Ins.  Co.  v. 
Lanier,  5  Fla.  110. 

*  Graham  v.  Ry.  Co.,  3  M.  &  G. 
146;  Lime  Co.  V.  Green,  L.  R.  7  C.  P. 
43,  R.  R.  Co.  V.  R.  R.  Co.,  21  N.  J. 
E.  283;  Rich  v.  Iron  Co.,  L.  R.  9 
E.xchq.  244;  R.  R.  Co.  v.  Transp.  Co., 
83  Pa.  St.  160;  Board  v.  Ry.  Co.,  47 
Ind.  407;  Kent  v.  Mining  Co.,  78  N. 
Y.  159;  Newburg  v.  Weare,  27  Uliio 
St.  343;  Darst  v.  Gale,  83  111.  136; 
Cozart  V.  R.  R.,  54  Ga.  379;  Beadley 
V.  Bullard,  55  111.  417;  Bank  v.  iSorth, 
4  Johns.  Ch.  37;  Stoneware  Co.  v. 
Partridge,  8  Mo.  App.  217;  Poock  v. 
Building  Ass.,  71  Ind.  357;  Mining  Co 


COEPORATIONS. 


1316 


snch  a  defense  in  an  action  upon  an  executed  contract  is  given  by 
Tjndall,  Cli.  J.'  in  this  language  :  "  Upon  the  general  ground  of 
reason  and  justice,  no  such  power  can  be  set  up.  The  defendants, 
having  had  the  benefit  of  the  performance  by  the  corporation  of 
the  several  stipulations  into  which  they  entered,  have  received 


V.  Bank,  96  U.  S.  64:  Steamboat  Co. 
V.  McCutcheon,  13  Pa.  St.  13;  Bank 
V.  Bank,  31  N.  Y.  490;  Bank  v. 
Mathews,  98  U.  S.  621;  Maher  v.  Chi- 
cago, 33  111.  366;  Bissell  v.  R.  R.,  23 
N.  Y.  63;  Hotel  Co.  v.  Wade,  97  U. 
S.  13;  Humphries  v.  Association,  50 
Iowa,  607;  Navigation  Co.  v.  Weed, 
17  Barb.  378;  Moss  v.  Mining  Co.,  5 
Hill,  137;  Burtis  v.  Ry.  Co..  24  N.  Y. 
269;  Fertal  v.  R.  R.  Co.,  109  Mass. 
898;  Grant  v.  Coal  Co.,  80  Pa.  St.  303; 
Gifford  V.  R.  R.  Co.,  10  N.  J.  E.  177; 
Root  V.  R.  R.  Co.,  45  N.  Y.  524; 
Bullett  V.  R.  R.  Co.,  40  N.  Y.  108; 
McCluer  v.  R.  R.,  13  Gray,  124;  R.  R. 
Co.  V.  Cowdrey,  11  Wall.  459;  Ins. 
Co.  V.  Ilauck,  71  Mo.  465;  McLaugh- 
lin V.  Association,  63  Ind.  264;  Mosher 
V.  Rogers,  3  111.  App.  577;  Massey  v. 
Building  Ass.,  33  Kas.  634;  Hall  v. 
Supply  Co.,  48  Mich.  331;  French  v. 
Ddnolme,  29  Minn.  Ill;  Association 
V.  Ins.  Co.,  70  Ala.  120;  Baker  v. 
JSTeff,  73  Ind.  68;  Whitney  v.  Robin- 
son, 53  Wis.  309;  Canal  Co.  v.  Pink- 
ham,  1  Idaho  (N.  S.j  790;  Bank  v.  Mc- 
Donald, 130  Mass.  264;  Helena  v. 
Turner,  36  Ark.  577;  Society  v.  Pad- 
dock, 80  111.  2G3;  Jones  v.  Guaranty 
Co.,  101  U.  S.  628;  Conirnissioners  v. 
R.  R.,  50  Ind.  85;  Plank  Road  Co.  v. 
]\Iurray,  15  111.  336;  Thomas  v.  Rail- 
way Co.,  104  111.  463;  R.  R.  Co.  v. 
Trust  Co.,  49  111.  33;  Zabriskie  v.  R. 
R.,  23  How.  381;  Lefevre  v.  Lefevre, 
4  S.  &  R.  341;  Cal lender  v.  R.  R,  11 
Ohio  St.  516;  Reynolds  v.  Myers,  51 
Yt.  440 ;  Manf  g  Co.  v.  Stuart,  46 
Mich.  482;  Relfe  v.  Ins.  Co.,  10  Mo. 
App.  150;  R.  R.  Co.    v.  Robards,  60 


Tex.  545;  S.  C,  48  Am.  R.  368;  Sav- 
ings lust.  V.  Board,  &c.,  75  Mo.  408; 
Kelly  V.  Transp.  Co.,  3  Oreg.  189; 
Weber  v.  Society,  44  Iowa,  239 ; 
Showalterv.  Piuer,  59  Mo.  233;  Smith 
V.  Sheeley,  12  Wall.  358;  Daniels  v. 
Tearney,  102  U.  S.  431;  Millard  v. 
Academj^  8  111.  App.  341;  Chambers 
V.  St.  Louis,  39  Mo.  543;  Robbins  v. 
Embry,  1  S.  &  M.  Ch.  268;  Hudson 
V.  Swan,  83  N.  Y.  553;  Milnor  v. 
R.  R.  Co.,  53  N.  Y.  363;  Wade  v. 
Society,  15  Miss.  663;  Land  v.  Coff- 
man,  50  Mo.  343;  Maghee  v.  R.  R.  Co., 
45  K  Y.  514;  Dimpfell  v.  R.  R.,  9 
Biss.  137;  Whitney  v.  Wyman,  101  LT. 
S.  392;  Wright  v.  Pipe  Line  Co.,  101 
Pa.  St.  304;  S.  C,  47  Am.  R.  701; 
Taylor  v.  Chichesta,  L.  R.  3  Exchq. 
356;  R.  R.  Co.  v.  Proctor,  29  Vt.  93; 
Ry.  Co.  V.  Hawks,  33  L.  J.  Ch.  77; 
5  il.  L.  C.  331;  Colliery  Co.  v.  Wad- 
dle, L.  R.  3  C.  P.  463;  Webb  v. 
Comm'rs,  L.  R.  5  Q.  B.  643;  Canal 
Co..  iu  re,  L.  R.  34  Ch.  D.  85;  Fouu- 
taine  v.  Ry.  Co.,  L.  R.  5  Eq.  316; 
Ry.  Co.,  in  re,  L.  R.  3  Q.  B.  583; 
Burkiushaw  v.  Nicolls,  L.  R.  3  App. 
Cas.  1004;  Duland  v.  Ry.  Co.,  L.  R.  2 
App.  Cas.  793;  R.  R.  Co.  v.  Thompson, 
103  III.  187;  Auerbach  v.  Mill  Co.,  38 
Minn.  391;  S.  C,  41  Am.  R.  285; 
AVard  v.  Johnson,  95  111.  315;  Chipen. 
dall,  in  re,  De  G.  M.  &  G.  19;  Fergu- 
son V.  Landrau,  5  Bush,  230;  Glass 
Co.  V.  Dewey,  16  Mass.  103;  U.  S.  v, 
Hodson,  10  Wall.  395;  West  v.  Board, 
83  111.  306. 

'  Fishmongers'  Co.  v.  Robertson,  5 
McG.  131. 


1316  The  Law  of  Estoppel. 

the  consideration  for  their  own  promises ;  such  promise  by  them 
is,  therefore,  not  nudum pactuin,'  they  never  can  want  to  sue  the 
corporation  upon  the  contract  in  order  to  enforce  tlie  perform- 
ance of  their  sti])nhitions,  whicli  have  l)ecn  ah-eady  voluntarily 
performed,  and,  therefore,  no  sound  reason  can  be  suggested  why 
tiiey  sliould  justify  their  refusal  to  perform  the  stipulations  made 
on  the  grt)und  of  inability  of  the  corporation,  which  suit  they  can 
never  want  to  sustain." 

The  doctrine  of  icltra  vires  has  no  application  in  favor  of  cor- 
porations for  wrongs  comniitted  by  them.'  Thus,  a  corporation, 
which,  b}-  its  proper  officers,  executed  a  mortgage  of  its  property 
out  of  the  State,  by  virtue  of  a  resolution  passed  at  a  meeting  of 
directors  held  out  of  the  State  where  it  was  created,  Avas  estopped 
in  a  suit  on  a  bond,  secured  by  the  mortgage,  to  set  up  these  facts.* 
So,  a  trustee  of  a  junior  mortgage  will  not  be  heard  to  contest  a 
senior  mortgage,  u])on  the  ground  that  the  compau}'  had  not  the 
power  to  make  it,  where  both  mortgages  were  made  in  the  exer- 
cise of  the  same  asserted  power,  so  that  if  one  is  void,  the  other 
is  also.'  An  acce])tance  by  a  corporation  of  the  benefits  of  a  con- 
tract, with  knowledge  of  the  fact  that  such  contract,  but  for  such 
acceptance,  would  not  be  binding  u])on  it,  constitutes  an  adoption 
of  the  contract,  and  renders  the  corporation  liable  upon  it."  A 
de  facto  corporation,  as  against  those  who  deal  with  it,  cannot 
avoid  its  contracts  upon  the  ground  that  it  has  no  corporate 
power*  or  existence.  So,  a  corporation  having  the  power  to  bor- 
row money,  executes  a  mortgage  on  its  property  it  cannot,  after 
receiving  a  loan  on  the  security  of  its  mortgage,  avoid  its  liability 
by  questioning  its  power  to  mortgage,  or  show  a  defective  exe- 
cution of  the  power  conferred  upon  it.° 

§  1180.  In  a  late  case  the  English  rule  was  thus  stated  : 
"  The  question  arose  on  the  claim  of  transferees  of  debentures  or 

1  Bauk  V.  Graham,  100  U.  S.  609.  Jones  v.  Guaranty  Co..  101  U.  S.  G'28; 

2  R.  1{.  V.  Cowdicy,  11  Wall.  459.  Biadlcy  v.  Ballard,  o")  111.  413;  Com- 
'"  McAllister  v.  Plant,  54  ^Miss.  106.  missiouers  v.  R.  R,  50  lud.  85;  Darst 
■>  Humphrey  V.  Associaiion, 50  Iowa,  v.  Gale,  83   111.  136;  Society  v.    Pad- 

007.  dock,  80  111.  263;  Plunk  Road  Co.  v. 

MJobson  V.  Simonton,    86    N.    C.      Murray.  15  111.  336;  R.  R.  Co.  v.  Dow, 
492.  19  F.  R.  388. 

6  Thomas  V.  Ry.  Co.,  104   111.  462; 


Corporations.  1317 

corporate  bonds,  to  recover  on  tlieni,  against  the  claim  of  the 
company  that  they  were  not  valid  in  the  luuids  of  the  contractor 
to  v.'liom  they  were  originally  issued  and  by  whom  they  were 
transferred.' 

Mr.  Justice  Kay  stated  the  rule  to  be  as  follows :  "  That 
where  a  company  has  power  to  issue  securities,  an  irregularity  in 
the  issue  cannot  be  set  up  against  even  the  original  holder,  if  he 
has  a  right  to  presume  omnia  rite  acta.^  If  such  security  be 
legally  transferable,  such  an  irregularity — and,  a  fortiori,  any 
equity  against  the  original  holder — cannot  be  asserted  b}''  the 
company  against  a  honajide  transferee  for  value.^  Nor  can  such 
an  equity  be  set  up  against  an  equitable  transferee,  whether  the 
security  was  transferable  at  law  or  not,  if,  by  the  original  conduct 
of  the  company  in  issuing  the  security,  or  by  their  subsequent 
dealings  with  the  transferee,  he  has  a  superior  equity.*  In  the 
case  at  bar,  where  the  claimants  were  equitable  transferees  only 
of  securities,  which,  the  company  having  power  to  issue  such 
represent  on  the  face  of  them  to  be  legally  transferable,  and 
where  the  company  would  be  able  to  plead  at  law  against  the 
original  holder,  or  the  lirst  transferee,  that  the  debentures  were 
invalid,  because  issued  by  an  insufficient  meeting  of  shareholders, 
if  the  original  conduct  of  the  company  in  issuing  these  debentures 
was  such  that  the  public  were  justitied  in  treating  it  as  a  represent- 
ation that  they  were  legally  transferable,  there  would  be  an  equity 
on  ihe  part  of  any  person  who  had  agreed  for  value  to  take  a 
transfer  of  their  debentures  to  restrain  the  company  from  plead- 
ing their  invaldity  although  that  might  be  a  defense  at  law  to  an 
action  by  the  transferor."'' 

§  1181.  The  doctrine  has  been  thus  declared  by  the  supreme 
court  of  the  United  States  :  "  A  coporation  is  liable  for  negligent 

'  Rumford  Canal  Co.,  in  re,  49  L.T.  *  Bank.iu  re,16  L.T.  Rep.(X.  S.)  1G3; 

(Cai.  D.)N.  S.  118.  L.    Rep.   3   Ch.  App.    391;  Ordnance 

2  Fouutainev.  Railway  Co.,  L.  Rep.  Co.,  in  re,  18  L.  T.  R.  (X.  S.)  183;  L. 
5  Eq.  316.  R.  3  Ch.  App.  154;  Dickson  v.  Rail- 

3  Webb  V.  Commissioners,  23  L.  T.  way  Co.,  19  L.  T.  Rep.  (iST.  S.)  346;  L. 
(N.  S.)  743;  L.  Rep.  5  Q.  B.  642;  Her-  R.  4  Q.  B.  441. 

cules  V.  Ins.  Co.,  L.  R.  9  Eq.  302;  Rich  ^  Rumford   Canal   Co.,  in  re,  49  L. 

V.  Ashbury  Co.,  L.    R.  7  H.  L.  653;  T.    N.  S.  (Ch.  D.)  118;  Higgs  v.  Tea 

Burkinshaw  v.  Nichols,  3  App.  Cas.  Co.,  31  L.  T.  R.  (N.  S.)  336;  L.  R.  4 

1004.  Exchq.  387. 


1318  The  Law  of  Estoppel. 

and  malicious  torts,  including  libel,  assault  and  battery,  malicious 
prosecution,  and  false  imprisonment.  In  such  cases  the  plea  of 
ultra  vires  is  unavailing.  The  corporation  is  estopped  from  set- 
ting up  such  a  defense.'  The  same  result  is  produced  in  like 
manner  in  many  instances  where  a  corporation,  having  enjoyed 
the  fruits  of  a  contract  fairly  made,  denies,  when  called  to 
account,  the  existence  of  the  corporate  power  to  make  it."  The 
principle  of  estoppel  thus  applied  has  its  foundation  in  a  wise 
and  salutary  policy.  It  is  a  means  of  repose.  It  promotes  fair 
dealing.  It  cannot  be  made  an  instrument  of  wrong  or  oppres- 
sion, and  it  often  gives  triumph  to  right  and  justice,  where  noth- 
ing else  known  to  our  jurisprudence  can,  by  its  operation,  secure 
those  ends.  Like  the  Statute  of  Limitations,  it  is  a  conservator, 
and  without  it  society  could  not  well  go  on. 

"  If  parties  are  in  pari  delicto,  the  law  will  help  neither,  but 
leaves  them  as  it  finds  them.  But  if  two  persons  are  in  delicto, 
but  one  less  so  than  the  other,  the  former  may  in  many  cases 
hiaintain  an  action  for  his  benefit  against  the  latter.'  It  is  not 
necessary  here  to  consider  the  extent  and  limitations  of  the  rule. 
They  are  fully  examined  in  the  authority  referred  to.  In  the 
case  in  hand  the  obligee  must  be  deemed  wholly  innocent,  because 
the  contrary  ia  not  alleged,  and  it  does  not  appear.  Quod  non 
apparet,  non  est.  De  non  apparentxhus  et  non  existeniihiis,  eadeni 
est  ratio.  '  If  the  contrar't  be  executed,  however,  that  is,  if  the 
wrong  be  already  done,  the  illegality  of  the  consideration  does 
not  confer  on  the  party  guilty  of  the  wrong  the  right  to  renounce 
the  contract ;  for  the  general  rule  is,  that  no  man  can  take  advan- 
tage of  his  own  wrong,  and  the  innocent  party,  therefore,  is  alone 
entitled  to  such  privilege.'*  It  is  well  settled  as  a  general  pro- 
position, subject  to  certain  exceptions,  not  necessary  to  be  here 
noted,  that  where  a  party  has  availed  himself  for  his  benefit  of 
an  unconstitutional  law,  he  cannot  in  a  subsequent  litigation  with 
others,  not  in  that  position,  aver  its  unconstitutionality  as  a 
defense,  although  such  unconstitutionality  may  have  been  pro- 
nounced by  a  competent  judicial   tribunal   in   another  suit.     In 

'  Bank  v.  Graham,  100  U.  S.  699.  »  White  v.  Bank,  22  Pick.  181. 

»  Railway  Co.  v.  McCarthy,  96   U.         <  Taylor  v.  Weld,  5  Mass.  108. 
B.  258 


Corporations.  1319 

sucli  cases  the  principle  of  estoppel  applies  with  full  force  and 
conclusive  effect.' 

"  This  court  said  :  '  When  a  bond  is  voluntarily  entered  into 
and  the  principal  enjoys  the  benefits  it  was  intended  to  secure, 
and  a  breach  occurs,  it  is  then  too  late  to  raise  the  question  of  its 
validity.  The  parties  are  estopped  from  availing  themselves  of 
such  a  defense.' '" 

§1182.  The  general  rule  is  that  "if  the  contract  be  valid 
under  any  circumstances,  an  innocent  party  has  a  right  to  pre- 
sume the  existence  of  such  cii'cumstances,  and  the  corporation  is 
estopped  to  deny  them.'-'  A  corporation  that  has  exceeded  its 
powers  in  issuing  bonds,  cannot,  after  receiving  money  thereon, 
defend  on  that  ground.  It  is  estopped  from  setting  up  the 
defense  of  ultra  vires.*  The  question  of  tiltra  vires  can  only  be 
taken  advantage  of  by  the  government  under  whose  laws  such 
corporation  was  created,  and  then  only  in  a  direct  action  of  for- 
feiture of  its  charter.  It  cannot  be  raised  collaterally  by  private 
persons.'  In  Jones  v.  Guaranty  Co.,  supra,  a  corporation  exe- 
cuted its  bonds  and  mortgage  to  the  Guaranty  and  Indemnity 
Co.,  and  afterwards  became  insolvent.  The  unsecured  creditors 
of  the  mortgaging  corporation  attacked  the  mortgage  as  being 
idtra  vires.  The  United  States  Supreme  Court  held  that  this 
question  could  not  be  raised  by  the  creditors  of  the  insolvent  cor- 
poration. It  was  said  by  Mr.  Justice  Swayne  :  "  If  the  mortgage 
here  in  question  be  tiltra  vires,  no  one  can  take  advantage  of  the 
defect  of  power  involved  but  the  State.  As  to  all  other  parties, 
it  must  be  held  valid,  and  can  be  enforced  accordingly." 

•  Ferguson    v.    Landrail,    5    Bush,  463;  R.  R.  v.    Thomas,    103  111.    187;  . 
230;  Ferguson  v.    Landrau,  1  Bush,  R'y  Co.  v.  R.  R.  Co.,  59  N.  H.  385; 
548;  Van  Hook  v.Whitlock,  26  Wend.  Jones    v.    Guaranty    Co.,  101   U.  S. 
43;  Lee  v.    Tillotson,  24  Wend.  337;  628. 

People  V.  Murray,  5  Hill,  468;    Bur-  ^  Water  Co. v.  Fluming  Co.,  22  Cal. 

lingtonv.  Gilbert,  31  Iowa,  356;  R.  R.  630;  R.  R.  Co.  v.  Ellerman,  105  U.  S. 

V.  Stewart,  39  Iowa,  267.  173;  Bank  v.  Whitney,  103  U.  S.  102; 

^  U.  S.    V.    Hodson,  10  Wall.  395;  Jones  v.  Habersham,  107  U.   S.  188; 

Daniels  v.    Tearney,    102  U.  S.  420.  Bank  v.  Mathews,  98  U.  S.  621;  Bank 

3  Bank  v.  Bank,  10  Wall.  640;  Bank  v.  North,  4  Johns.  Ch.   470;   Gordoa 

V.  Barge  Co.,  16  N.Y.  133.  v.   Preston,    1   Watts,    385;  Bank  v. 

*  Humphrey     v.     Association,     50  Fall,  71  Me.  49;  Pratt  v.  Short,  79  N. 
Iowa,  614;  Railway  v.  McCarthy,  96  Y.  437;  S.  C,  35  Am.  R.  531. 

U.  S.  267;  Thomas  V.  R.  R.,  104  U.  S. 


11120  The  Laav  of  Estoppel. 

§  1183.  TVliile  it  is  tlie  general  principle  that  negotiable 
securities,  issued  by  a  corporation  without  authority  of  law,  or  in 
cxpix'ss  violation  ot"  a  statute,  are  inoperative  and  void,  even  in 
the  hands  of  innocent  holders,  yet  there  is  another  rule  of  law 
equally  well  settled — that,  al^though  a  contract  entered  into  by 
the  agents  or  officers  of  a  private  corporation  is  ultra  vires,  and 
therefore  not  binding  on  the  company  so  long  as  it  remains 
executory,  yet,  if  the  company  in  such  case  knowingly  permits 
the  other  contracting  party,  without  objection,  to  go  on  and  per- 
form the  contract  on  his  part,  and  thereby  obtains  and  appropri- 
ates to  its  own  use  money,  property  or  labor,  in  furtherance  of 
some  legitimate  corporate  purpose,  it  will  be  estopped  from  deny- 
ing its  liability  on  such  contract,  and  where  restrictions  are 
imposed  by  a  charter  of  a  corporation  upon  the  amount  of  prop- 
erty that  it  may  hold,  a  party  conveying  to  such  corporation  prop- 
erty in  excess  of  the  amount  it  may  hold,  cannot  take  advantage  of 
such  restrictions  as  a  defense,  in  private  litigation  between  the 
parties ;  it  can  only  be  made  available  in  a  direct  proceeding  by 
the  State  which  created  it.'  So,  a  party  sued  by  a  national  bank 
for  moneys  it  loaned  him,  cannot  set  up  as  a  bar  a  violation  of 
its  charter  or  statute  that  it  exceeded  in  amount  one-tenth  part 
of  its  capital  stock  actually  paid  in."  So,  parties  accepting  pre- 
ferred stock  on  which  interest  was  payable,  having  received 
interest  on  such  stock  for  several  years,  are  estopped  from  ques- 
tioning the  power  of  the  company  to  issue  it.' 

§  1184.  No  person,  natural  or  artificial,  can  enforce  a  contract 
that  is  void,  illegal  or  contrary  to  the  policy  of  the  law.  So,  a 
corporation  cannot  legally  exercise  any  authority  or  power  not 
expressly  conferred  upon  it.     Where  a  statute  is  passed  creating 

>  Runyoa   v.    Coster,    14   Pet.    122;  Little,  94  Pa.  St.  04;  Oldham  v.  Bank, 

McCarthy  v.    Eggors,    10    Ben,    688;  85  N.  C.  240;  Turner  v.  Bank,  78  Ind. 

Smith    V.     Shecly,     12     Wall.     358;  19;    Bank   v.    Kramer,  32  Hun,  270; 

Bogardus  V.  Churcli,  4Sand.  Ch.633;  Simpson    v.   Bank,    93    N.    Y.    270; 

De  Camp  v.  Dobbins,  29  N.  J.  E.  36;  Wherry  v.  Hale,  77  Mo.  20;  Cleveland 

Davis  V.  R.  R.,  131  ]\Ia5s.  258;  Jones  v.  v.  Shoeman,  40  Ohio  St.  176. 

Habersham,  107  U.  S.  174;  Mat.  Bunk  =■  Mining  Co.  v.  Bank,  96  U.  S.  640; 

V.   Stewart,   107  U.   S.   G7G;  Bank  v.  Bank   v.    Fall,    71   Me.    49;   Pratt   v. 

Mathews,    Xote   5,    Supra    ».t   Cases  ;  Short,  79  N.  Y.  437;  S.  C,  35  Am.  R. 

Holmes  v.  Boyd,  90  Ind.  332;  Bank  v.  531;  R.  R.  Co.  v.  Dow,  21  F.  R.  388. 

Clears,   8  Biss.  C.  C.  158  ;  Winton  v.  ^  Branch  v.  Jessup,  106  U.  S.  4G8. 


Corporations.  1321 

new  powers,  and  providing  that  any  existing  corporation  may 
accept  it,  and  that,  on  filing  tlieir  acceptance,  that  part  of  their 
charter  which  is  inconsistent  with  the  act  shall  be  repealed  ;  if  a 
corporation  assume  to  act  under  the  statute  and  exercise  its  pow- 
ers, though  witliout  filing  the  acquired  acceptance,  they  cannot 
exonerate  themselves  from  responsibility  upon  contracts,  made  in 
the  exercise  of  such  powers,  by  objecting  that  they  had  not  filed 
the  evidence  required  by  the  statute  to  evince  their  decision  to 
accept  it.  Although  a  corporation  cannot  vary  from  the  object 
of  its  creation,  and  persons  dealing  witli  them  must  take  notice 
of  whatever  is  contained  in  the  law  of  their  organization,  never- 
theless, in  cases  in  which  a  corporation  act  within  the  range  of 
the  general  authority,  they  may  be  bound,  though  failing  to 
comply  with  some  regulation  which  should  not  have  been  neg- 
lected, but  has  been.'  So,  grantees  wlio  accept  a  statutory  grant 
providing  for  an  assessment  of  the  damages  of  owners  affected 
thereby,  admit  by  such  acceptance  that  such  owners  sustained 
damage.''  While  a  corporation  cannot  relieve  itself  from  respon- 
sibility to  those  to  whom  it  may  be  indebted,  by  becoming 
merged  into  a  new  organization,  it  may,  by  the  act  of  merger, 
become  so  situated  as  to  be  estopped  from  claiming  that  it 
remains  undissolved.'  Persons  associating  and  acting  under  the 
name,  style  and  title  of  Express  Companies,  are  estopped  to  deny 
that  they  are  corporations."  Where  parties  hold  themselves  out 
as  a  corporation,  hold  meetings  as  such,  and  in  a  meeting  employ 
a  person  to  render  services  for  them,  they  cannot,  in  his  action 
against  the  corporation  for  his  compensation,  require  him  to 
prove  their  corporate  power  to  act  as  they  have  assumed  to* 
Where  a  corporation  imposes  new  assessments  upon  members,  it 
is  estopped  from  denying  that  they  are  still  members.'^  A  corpo- 
ration, whose  directors  have  declared  and  paid  over  to  all  but  one 
stockholder  a  dividend,  will  not  be  allowed  to  set  up,  as  a  defense 
to  an  action  by  a  stockholder  for  his  share  of  the  dividend,  that 

'  Zabriskie  v.  R.  R.  Co.,  23  Howard,  *  Express  v.  Bedbuiy,  34  111.  459. 

881 ;  Lanesborough  v.  Cvitts,  22  Pick.  ^  Stone  v.  Society,  14  Vt.  86. 

320.  6  Hyatt  V.  Esmond,  37  Barb.  601; 

*  People  V.  Law,  34  Barb.  494.  White  v.  Ross,  15  Abb.  Pr.  66;  Hyatt 

3  Carey  v.  R.  R.,  5  Iowa,  357,  v.  Whipple,  37  Barb.  601. 


1322  The   Law  of  Estoppel. 

no  such  dividend  lias  been  earned.'  Where  a  person  is  registered 
as  a  shareholder  in  a  corporation,  and  on  the  faith  of  such  regis- 
tration is  induced  to  pay  an  assessment,  the  corporation  cannot 
dispute  his  title  to  the  stock." 

§  1185.  A  lease  taken  by  an  individual  in  trust  for  a  corpora- 
tion thereafter  to  be  formed,  creates,  on  the  formation  of  such 
corporation,  and  upon  its  receiving  an  assignment  of  such  lease, 
with  knowledge  of  the  terms  upon  which  it  was  executed  and 
received  from  the  lessor  by  the  individual  lessee,  a  liability  in 
equity,  on  the  part  of  such  corporation,  to  pay  the  rent  to  the 
lessor  ;  and  such  liability  cannot  be  avoided  by  a  transfer  of  the 
lease  by  the  corporation  to  a  third  person.  Thus,  after  a  lease 
had  been  made  for  the  benetit  of  a  partnership  association,  or 
such  corporation  as  should  be  formed  to  succeed  them,  the  lease 
being  taken  in  the  name  of  an  individual  upon  an  agreement  to 
assign  it  upon  request,  the  company  were  organized,  took  posses- 
sion of  the  premises,  and  leased  them  for  their  own  purposes. 
Held^  that  they  had  impliedly  agreed  to  perform  all  tlie  cove- 
nants of  the  lease,  and  to  indemnify  the  nominal  lessee  against 
any  liability  on  the  same.'  Where  a  corporation,  organized  pur- 
suant to  law,  but  before  its  articles  of  association  are  filed,  enters 
into  a  contract  for  machinery  to  enable  it  to  conduct  its  business, 
a  subsequent  ratification  of  the  validity  of  the  contract  is  binding 
upon  it,  although  the  statute  declares  it  shall  not  commence  busi- 
ness until  the  articles  are  filed, '^  If  an  assignment  of  a  right  to 
an  invention  is  made  to  a  corporation  not  yet  organized,  and  let- 
ters patent  are  issued  to  the  corporation  after  its  organization, 
and  the  corporation  accepts  the  patent,  using  it,  and  paying  a 
royalty,  as  agreed  at  the  time  of  the  assignment,  it  is  estopjsed 
from  afterwards  denying  its  obligation  under  the  assignment  and 
agreement.* 

>  Stoddard  v.  Shetucket,  34  Conn.  392;  Sugar  Co.  v.  Small,  45  Md.  395; 

542.  Preston  v.   Ry.  Co.,  7  E.   L.   &  Eq. 

'  Hart  V.  Frontino,  5  L.  R.  Exchq.  124;  R.   R.   Co.  v.  Titus,  49  Pa.  St. 

Ill;  Babia  Co.,  in  re,  L.  R.  3  Q.  B.  277;   Low  v.    R.    R.,  45  N.  H.  370; 

684;  Webb  v.  Comm'is,  3  Q.  B.  642.  Manuf.  Co.  v.  Stuart,  46  Micb.  482; 

3  Van  Schaick  v.  R.  R.  Co.,  38  N.  Bancroft  v.  Academy,  5  Del.  577. 

Y.  346.  5  Bommer  v.  Spring  Co.,  44  N.  Y 

*  Whitney  v.   Wyman,   101   U.   S.  Super.  Ct.  454. 


CORPOEATIONS.  1323 

§  1186.  Shareholders  cannot  lie  by,  sanctioning,  or  by  their 
silence  at  least  acquiescing  in  an  arrangement  which  is  ultra  mres 
of  the  company  to  which  they  belong,  watching  the  result,  if  it  be 
favorable  and  profitable  to  them  to  abide  by  it,  and  insist  on  its 
validity;  but  if  it  prove  unfavorable  and  disastrous,  then  to 
institute  proceedings  to  set  it  aside.'  It  is  against  good  conscience 
that  one  having  power  to  prevent,  should  stand  by  and  see  his 
associates  spend  money  or  enter  into  a  contract,  which  may  result 
to  his  benefit  and  afterwards  charge  them  with  it.  His  neglect 
to  act  at  the  proper  time  efEectually  bars  his  right.  Silence  or 
acquiescence  by  a  stockholder  in  the  acts  of  the  company,  will  be 
equivalent  to  assent,  and  estop  him  from  maintaining  an  action  to 
set  them  aside.''.  The  stockholders  of  a  corporation  are  estopped 
by  the  acts  of  the  officers  transacted  in  good  faith,  where  such 
acts  are  within  the  scope  of  corporate  power.'  So,  where  the 
dii-ectors  of  a  corporation  have  transferred  its  original  charter 
without  authority  of  stockholders,  and  such  stockholders  have 
subsequently  participated  in  the  company's  business  under  a  new 
management,  or  permitted  the  scheme  to  be  carried  out  without 
objection,  they  are  estopped  from  denying  the  validity  of  the 
transfer.* 

§  1187.  Corporations  have  the  power  to  waive  their  rights,  and 
are  bound  by  estoppels  in  pais  like  natural  persons."     They  can 

1  C4regory  v.  Patcbett,  33Beav.  603;  Blancbard,  31  Ohio  St.  650:  Ross  v. 
Oil  Co.  V.  Marbury,  91  U.  S.  587;  lus.  R.  R.  Co.,  77  111.  127;  Clark  v.  R.  R. 
Co.  V.  McCain,  96  U.  S.  84;  Hotel  Co.      Co.,  4  Neb.  458. 

V.  Wade,  97  U.  S.  13;  Perkins  v.  R.         ^  Oglesby  v.  Attrall,  105  U.  S.  605; 

R.    Co.,  47  Me.  591;  Clark   v.    R.  R.  Baily  v.  R.  R.,  12  Beav.  433;  Walker 

Co.,   4  Neb.   458;  Watts'  Appeal,  78  v.  R.  R.  Co.,  34  Miss.  245;  Ellison  v. 

Pa.  St.  370.  R.  R.  Co.,  36  Miss.  572;  Durfce  v.  R. 

2  Graham  v.  R.  R.  Co.,  2  M.  &  G.  R.  Co.,  5  Allen,  242;  Came  v.  Brigbam, 
140;  Ffooks  V.  Railway  Co.,  17  Jur.  39  Me.  35. 

365;  Smalcombe's  Case,  L.  R.  3  Eq.  *  Upton  v.  Jackson,    1   Flip.  C.  Ct. 

769 ;  Terry  v.  Lock  Co. ,  47  Conn.  141 ;  413. 

Chapman  v.  R.  R.  Co.,  6  Ohio  St.  119;  ^  Society  v.  Providence,  6  R.  I.  235; 

Grey  V.  R.  R.  Co.,1  Grant  Cas.  412;  Princeton   v.    Templeton,  71  111.  68; 

Tash  V.  Adams,  10   Gray,  252;  Dunn  R.    R.    Co.    v.   Tipton,    5  Ala.    787; 

V.  Caldwell, 28  Ga.  117;  Sanderson  v.  Athens  v. Thomas,  82  111.  259;  Fleisch- 

Nail  Co.,  34  Ohio  St.  442;  Lime  Co.  man  v.  Stern,  90  N.  Y.  110;  Hat  Co. 

V.  Green,  L.  R.  7  C.  P.  43;  Riche  v.  v.   Hat  Co.,  90  N.  Y.  607;  Heath  v. 

R'y  Co.,  L.  R.  9  Exchq.  224;  Watts'  Ins.    Co.,   1   Cusb.  257;  Clark  v.  Ins. 

Appeal,  78  Pa.  St.  370;  Empire  Co.  v.  Co.,  6  Cush.   343;  Concord  v.  Bank 


1324  The  Law  of  E-toppel. 

claim  no  exemption  from  the  operation  of  those  rules  and  maxims 
which  are  established  to  enforce  good  faith  and  fair  dealing 
among  individuals.  Thus,  a  railroad  company  which  had  entered 
into  an  agreement  with  another  company,  granted  its  road-bed  to 
the  latter  on  certain  conditions  ;  the  grantee  took  possession  and 
expended  large  sums  of  money  thereon,  which  the  stockholders 
and  directors  did  not  object  to  at  the  time,  they  were  afterwards 
estopped  from  denying  the  validity  of  the  agreement  on  the 
ground  of  irregularity,  or  that  it  was  ultra  vires.^ 

§  1188.  The  doctrine  of  estoppel  is  applicable  to  the  transfer 
of  certain  species  of  property,  or  choses  in  action  which,  in 
accordance  with  general  custom  and  usage  are  regarded  as  quasi 
nesotiable.  The  owner  of  certain  kinds  of  things  in  action  not 
technically  negotiable,  but  which,  in  the  course  of  business 
customs,  have  acquired  a  semi-negotiable  character  as  a  matter  of 
fact,  may  assign  or  part  with  them  for  a  special  purpose,  and  at 
the  same  time  may  clothe  the  assignee  or  person  to  whom  they 
have  been  delivered  with  such  apparent  indicia  of  title,  and 
instruments  of  complete  ownership  over  them,  and  power  to  dis- 
pose of  them,  as  to  estop  himself  from  setting  up  against  a  second 
assignee  to  whom  the  securities  have  been  transferred  in  o^ood 
faith  and  for  value,  the  fact  that  the  title  of  the  first  assignee  or 
holder  was  not  absolute  and  perfect.  If  the  owner  of  certificates 
of  stock  ai^signs  them  as  collateral  security,  pledges  them  or  puts 
them  into  the  hands  of  another  for  any  purpose,  and  accompanies 
the  delivery  by  a  blank  assignment  and   power   of  attorney  to 

IG  N.  H.  29 ;  Hale  v.  Ins.  Co.,  32  N.  Co.  v.  Small,  40  Md.  395 ;  Low  v.  R. 

H.  295;  People  v.  Maynard,  15  Mich.  R.    Co.,  45  N.  H.  375;  R.  R.  Co.  v. 

470;  Bank  v.   Bank,    50  N.  Y.    5To;  Titus,   49  Pa.   St.    277;  Whitney  v. 

Wilson  V.  R'y  Co.,  11  Jur.  X.  S.  124;  Wyman,  101  U.  S.  392;  R.  R.  Co.  v. 

Curnen  v.  Mayor,  79 N.  Y.  511;  Hill  v.  R.  R.  Co.,  36  Ark.  693;  Pendleton  v. 

R'y  Co.,   11   Jur.  N.  S.  192:  Ins.  Co.  Amj-,  13  Wall.  297;  Randolph  v.  Post, 

V.  Eggleston,  96  U.  S.  572;  Grant  v.  93  U.   S.   502;  Mitchell  v.  Deeds,  49 

Cropsey,  8  Nch.  205;  Steckel  v.  Bank,  111.    416;   R.  R.  Co.  v.  Trust  Co.,  49 

93  Pa.  St.  376;  S.  C,  39  Am.  R.  758;  111.  331;  Callender  v.  R.  R.,  11   Ohio 

Burton  v.  Burley,  9  Biss.  253;  Bank  v.  St.  516;  Richmond  v.  R.  R.,  33  Iowa, 

Kohuer,  84  X.  Y.  189;  Bahia  Co.,  in  422;  Gilbert  v.  Manchester,  55  X.  H. 

re,  L.  R.  3  Q.  B.  584;  Hart  v.  Fron-  298;  Xatchez  v.  Mallery,  54  Miss.  499. 

tino,  L.  R.  5  Exchq.  Ill;  Ashby  v.  '  R.   R.    Co.    v.  R.  R.  Co..    28   111. 

Blackwell,  1  Amb.  503:  Simm  v.  Tel-  437;  R.  R.  Co.  v.  Transp.  Co.,  83  Pa. 

egraph  Co.,  5  Q.    B.    D.   188;   Sugar  St.  260. 


COEPORATIONS.  1325 

transfer  the  same  in  the  usual  form,  signed  hj  himself,  and  this 
assignee  or  pledgee  wrongfully  sells  them  to  an  innocent  pur- 
chaser for  value  in  the  regular  course  of  business,  such  original 
owner  is  estopped  from  asserting,  as  against  this  purchaser  in 
good  faith,  liis  own  higher  title  and  the  want  of  actual  title  and 
authority  in  his  own  immediate  assignee  or  pledgee.  This  doc- 
*  trine  is  based  upon  the  fact  that  by  the  form  of  the  assignment 
in  general  use  of  this  species  of  property  the  assignee  is  clothed 
with  such  apparent  rights  of  ownership)  as  are  recognized  by  all 
dealing  in  such  securities,  as  sufficient  to  confer  a  complete  title 
and  power  of  disposal  upon  him.' 

§  1189.  Where  shares  belonging  to  a  person,  have  been  trans- 
ferred by  a  forged  transfer,  the  real  owner  may  obtain  the  restoi'a- 
tion  of  his  name  to  the  register."  And  the  company  which  has 
registered  the  forged  transfer,  and  which,  by  giving  certificates  to 
the  forger,  has  thus  enabled  him  to  hold  himself  out  to  the  world 
as  the  owner  of  the  shares,  is  estopped  from  denying  its  liability 
to  an  innocent  purchaser  for  value,  who  has,  in  reliance  upon  such 
certificate,  purchased  the  shares  from  the  forger.^  It  is  estopped 
from  denying  the  representations  and  recitals  in  certificates.* 
Where  a  corporation  issues  a  certificate  of  stock  to  a  party,  it 
represents  to  all  persons  dealing  with  such  party  that  he  owns  a 

»  Woods'  Appeal,  92  Pa.  St,  379;  S.  ^  gahia  Co.,    in  re,  L.  R.  3  Q.  B. 

C.,37Am.  R.  694;Coombesv.  Chaiid-  584;   87  Law  J.    Q.  B.  176;   Hart   v. 

]er,  38  Ohio  St.  178;  Tucker  v.  Bank,  Froutino,  L.  R.  5  Exchq.  Ill;  Tele- 

58  N.   H.  83;  S.  C,  43  Am.    R.  580;  graf  Co.,  in  re,  L.  R.  9  Eq.  Ca.  G53; 

Dyer  v.  Pearson,  3  B.  »fc  C.  38;  Jobu-  Telegraf  Co.  v.  Davenport,  97  U.  S. 

son  V.  Lyonnais  Co.,  L.  R.  3  C.  P.  D.  369;  Loving  v.  Mills,  125  Mass.  138; 

32;  Banking  Co.,  in  re,    L.  R.  3   Ch.  Sim  v.   Telegraf    Co.,   L.    R.    5    Q. 

App.  154;  Grissler  v.  Powers,  81  N.  B.  D.  188;  Mandelbaum  v.  MiningCc, 

Y.  57  ;  S.  C,  37  Am.  R.  475;  Renkin  4  Mich.  4C5;  Bank  v.  Field,  126  Mass. 

V.  Hill,  49  Iowa,  270;  Bemis  v.    Bee-  345;   Stebbins  v.    Ins.    Co.,  8  Paige, 

ker,  1  Kas.  220;  Wekch   V.   Bank,  94  550. 

HI.    191;  Kirkpatrick  v.    Brown,    54  ^  Holbrook  v.    Zinc  Co.,  57  N.  Y. 

Ga.   450;  Mayer  v.    Erhardt,   88  HI.  616;  R.  R.  Co.  v.  Schuyler,  34  N.  Y. 

452;  Hendricks  v.  Kelly,  64  Ala.  388;  30;    Davis    v.    Bank,    2    Bing.    393; 

Wylie's  AppeaK  90  Pa.  St.  210;  Rabun  Townsend  v.  Underbill,  52  N.  Y.  211; 

V.  Rabun,    61    Ga.    647;  Greens   Ap-  Reg.  v.  Shrop.  U.  Co.,  L.  R.  8  Q.  B. 

peal,    97    Pa.    St.    342;   Schenck    v.  420;   Leitch  v.  Wells,  48  N.  Y.  586; 

O'Neill,  23  Hun,  209.  Bahia,  in  re,  L.  R.  3  Q.  B.  584;  Leavitt 

^  Johnson   v.    Renlon,  L.  R.  9   Eq.  v.    Fisher,   4  Duer,   20;    Fatman    v. 

Ca.  181.  Lobach,  1  Duer,  354. 


1326  The  Law  op  Estoppel. 

certain  portion  of  its  capital  stock,  and  has  full  power  to  transfer 
it.  Any  purchaser  has  a  right  to  rely  upon  this  statement,  and  to 
claim  the  benefit  of  an  estoppel  in  his  favor.  The  certificate  must 
be  treated  with  the  same  effect  as  though  inquiry  were  made 
at  the  ofiice  of  the  corporation  itself  and  precisely  the  same 
information  given  as  that  recited  in  the  certificate  of  stock.  If  a 
party  may  safely  rely  upon  the  information  thus  obtained,  can  it 
be  said,  that  a  different  rule  is  applicable  to  the  written  representa- 
tion of  such  corporation.  The  certificate  itself  is  a  continuing 
affirmation  of  the  ownership  of  such  party,  and  his  power  over 
the  stock  until  it  is  withdrawn  in  some  manner  recognized  by 
law.'  Where  a  corporation  registers  a  person  as  a  stockholder,  on 
the  faith  of  which  he  pays  an  assessment  or  call,  it  cannot  dispute 
his  title  to  the  shares,"  or  if  through  mistake  it  issues  its  certifi- 
cates of  stock  to  a  party  who  has  been  registered  as  a  share- 
holder.^ 

§  1190.  Where  a  bank  makes  a  certificate  that  a  party  has 
funds,  it  has  the  means  of  accurate  knowledge,  and  it  is  estopped 
from  denying  the  truth  of  the  statement  where  parties  rely  on  its 
statement.*  Thus,  where  the  teller  or  other  proper  officer  of  a 
banking  corporation,  representing  it  and  doing  its  business  at  the 
counter,  certifies  the  checks  of  its  dealers  and  depositors  drawn 
upon  it,  in  the  usual  form,  under  a  general  power  to  certify,  such 
banking  corporation  is  responsible  to  holders  of  such  checks  in 
good  faith  and  for  value,  notwithstanding  private  directions  not 
to  certify  in  the  absence  of  funds  without  special  permission.^ 

'  R.   R.   Co.  V.  Schuyler,  34  N.  Y.  "  Irving  Bank  v.  Weatlierald,  36  K 

30;   McNiel  v.  Bank,  46  N.  Y.  325;  Y.  335;  Mead  v.  Bank,  25  N.  Y.  143; 

Leitcb  V.  AVells,  48  N.  Y.  586;  Weaver  Pope  v.  Bank,  59  Barb.  226;  Bank  v. 

V.  Barden,  49  N.  Y.  300;  Holbrook  v.  Bank,  16  N.  Y.  25;  Bank  v.  Bank,  50 

Zinc  Co.,  57  N.  Y.  610;  Kortrigbt  v.  N.  Y.  575. 

Bank,  &c.,  22  N.  Y.  348.  s  3.^^  y  Bank,  29  Pa.  St.  42;  Bank 

''  Ilart    V.    Mining    Co.,    5    L.    R.  v.  Bank,  10  Wall.  604;  Lickban-ow  v. 

Exchq.   Ill;  Railway  Co.  v.  Tritten,  Mason,  2  T.  R.  03;  Rounds  v.  Smilh, 

37  L.  J.  Q.  B.  137;  Stratton  v.  Lyons,  4211i.245;Bickford  v.  Bank,  42111.238; 

53  Vt.  130.  Barnett  v.  Smith,  30  N.  H.  250;  Meads 

3  Simm  v.  Telegraf  Co.,  L.  R.  5  Q.  v.    Bank,    25   N.    Y.    143;   Brown   v. 

B.  D.  188.  Leckie,  43  111.  497;  Bank  v.  Bank,  50 

;  Burkinshaw  v.  Nichols,  L.  R.  3  N.  Y.  575;  Griswold  v.  Haven,  25  N. 

App.  Cas.  1004;  Bank  v.  Bank,  L.  R.  Y^  596;  Builer  v.  Wakins,  13   Wall. 

6  H.  L.  353.  456;  Bank  v.    Aymar,    3    Hill.,    262; 


Corporations.  1327 

§  1191.  The  relation  of  a  cashier  to  the  bank  is  thus  dechired 
by  the  Supreme  Court  of  the  United  States  in  a  late  case'  by  Mr. 
Justice  Harlan,  delivering  the  opinion  of  the  court.  "  We  have 
stated  with  some  fullness  the  circumstances  disclosed  by  the 
record,  so  tliat  the  general  expressions  in  this  opinion  may  be 
interpreted  by  the  facts  of  this  case.  To  permit  the  bank,  under 
these  circumstances,  to  dispute  the  binding  force  of  the  arrange- 
ment made  by  its  cashier  in  reference  to  Kenney's  indebtedness, 
including  the  cancellation  of  the  old  note  and  trust  deeds,  and 
the  acceptance  of  the  new  ones,  would  be  a  mockery  of  justice. 
If  is  quite  true,  as  contended  by  counsel  for  appellants,  that  a 
cashier  of  a  bank  has  no  power,  by  virtue  of  his  office,  to  bind 
the  corporation,  except  in  the  discharge  of  his  ordinary  duties, 
and  that  the  ordinarj'  business  of  a  bank  does  not  comprehend  a 
contract  made  by  a  cashier — without  delegation  of  power  bj^  the 
board  of  directors — involving  the  payment  of  money  not  loaned 
by  the  bank  in  the  customary  wa}'.*  Ordinarily,  he  has  no  power 
to  discharge  a  debtor  without  payment,  nor  surrender  the  assets 
or  securities  of  the  bank.  And,  strictly  speaking,  he  may  not,  in 
the  absence  of  authority  conferred  by  the  directors,  cancel  its 
deeds  of  trust  given  as  security  for  money  loaned — certainly  not, 
unless  the  debt  secured  is  paid.  As  the  executive  officer  of  the 
bank,  he  transacts  its  business,  under  tlie  orders  and  supervision 
of  the  board  of  directors.  He  is  their  arm  in  the  management  of 
its  financial  operations.  While  these  propositions  are  recognized 
in  the  adjudged  cases  as  sound,  it  is  clear  that  a  banking  corpora- 
tion may  be  represented  by  its  cashier — at  least  where  its  charter 
does  not  otherwise  provide — in  transactions  outside  of  his  ordi- 
nary duties,  without  his  authority  to  do  so  being  in  writing,  or 
appearing  upon  the  record  of  the  proceedings  of  the  directors. 
His  authority  may  be  by  parol  and  collected  from  circumstances. 
It  may  be  inferred  from  the  general  manner  in  which,  for  a 
period  sufficiently  long  to  establish  a 'settled  course  of  business, 
he  has  been  allowed,  without  interference,  to  conduct  the  affairs 

Hern  V.  Nichols,  1   Salk.  289;  Cooke  «  Bank  v.  Dunn,  6  Pet.  51;  U.  S.  v. 

V.  Bank,  52  N.  Y.  96;  Bank  v.  Bank,  Bank,  21  How.  356;  Bank  v.  Bank,  10 

28  N.  Y.  425;  Clews  v.  Bank,  8  Daly,  Wall.  604;  Caldwell  v.  Bank,  64  Barb. 

476.  333;  Bank  v.  Kohner,  85  N.  Y.  189. 
1  Martin  v.  Webb,  107  U.  S.  7. 


1328  The  Law  of  Estoppel. 

of  the  bank.  It  may  be  implied  from  the  conduct  or  acquiescence 
of  the  corporation,  as  represented  by  the  board  of  directors. 
Wlien,  during  a  series  of  years  or  in  numerous  business  trans- 
actions, he  lias  been  permitted,  without  objection  and  in  his 
official  capacity,  to  pursue  a  particular  course  of  conduct,  it  may 
be  picsumed,  as  between  the  bank  and  those  who  in  good  faith 
deal  with  it  upon  the  basis  of  his  authority  to  represent  the  cor- 
poration, that  he  has  acted  in  conformity  with  instructions 
received  from  those  who  have  tlie  right  to  control  its  operations. 
Directors  cannot,  in  justice  to  those  who  deal  with  the  bank,  shut 
tlieir  eves  to  what  is  going  on  around  them.  It  is  their  duty  to 
use  ordinary  diligence  in  ascertaining  the  condition  of  its  busi- 
ness, and  to  exercise  reasonable  control  and  supervision  of  its 
officers.  They  have  something  more  to  do  than,  from  time  to 
time,  to  elect  the  officers  of  the  bank,  and  to  make  declarations 
of  dividends.  That  which  tliey  ought,  by  proper  diligence,  to 
have  known  as  to  the  general  course  of  business  in  the  bank,  they 
may  be  presumed  to  have  known  in  any  contest  between  the  cor- 
poration and  those  who  are  justified  by  the  circumstances  in  deal- 
ing with  its  officers  upon  the  basis  of  that  course  of  business." 
He  represents  the  corporation.' 

§  1102.  The  cashier  of  an  incorporated  bank  is  the  general 
executive  officer  to  manage  its  concerns,  in  all  things  not  pecu- 
liarly committed  to  tlie  directors  ;  he  is  agent  of  the  corporation, 
not  agent  of  the  directors.  In  all  transactions  in  wliich  a  bank 
may  lawfully  engage,  the  cashier  is  its  managing  agent,  and  speaks 
for  tlie  corporation.  Thus,  if,  upon  inquiry  by  one  lioklen  to  a 
baiik  as  surety  upon  a  note,  the  cashier,  knowing  tliat  he  is  surety, 
informs  him  that  the  note  is  paid,  intending  tliat  he  sliould  rely 
upon  his  statement,  and  the  surety  does  so,  and  in  consequence 
changes  his  position  by  giving  up  securities,  or  indorsing  other 
notes  for  the  same  principal,  or  the  like,  the  bank  will  be  estop- 
ped to  deny  that  such  note  is  paid.^  So,  where  a  Chicago  bank 
drew  a  check  on  the  defendant,  a  New  York  bank,  for  ^254.50, 
to  the  order  of  G.  This  check  was  sent  by  mail  to  G.,  but  was 
lost.     The  check  was  presented  to  the  defendant  and  by  it  certi- 

»  Bissell  V.  Bank,  69  Pa.  St.  415.  »  Bank  v.    Haskell,  51   X.  H.  116; 

Grant  v.  Cropsey,  8  Neb.  205. 


Corporations.  1329 

fied.  On  the  day  after  the  Chicago  bank  wrote  to  defendant 
that  the  check  had  been  lost,  and  directed  it  to  stop  payment,  and 
wrote  to  the  Chicago  bank  that  the  check  had  been  certified. 
Two  weeks  later  a  stranger  purchased  of  plaintiff  United  States 
bonds  and  tendered  in  payment  this  check  raised  to  $2,540,  with 
the  name  of  the  payee  altered  to  that  of  the  plaintiff.  This  check 
plaintiff  sent  to  defendant  and  asked  its  paying  teller  if  the  cer- 
tification was  good,  to  which  he  answered,  3'es.  He  said  nothing 
about  the  check  having  been  lost,  and  its  payment  stopped. 
Plaintiff  thereupon  accepted  that  check  in  payment  for  the  bonds. 
Jleld,  that  the  bank  was  liable  to  plaintiff  for  the  amount  for 
which  he  received  the  check.  "  A  liability  on  the  part  of  the 
defendant  was  created  through  the  neglect  of  the  bank,  through 
its  paying  teller,  to  inform  plaintiffs,  when  the  check  was  pre- 
sented with  an  inquiry  as  to  the  certification,  that  payment  of  the 
check  had  been  stopped,  and  to  communicate  the  other  facts 
within  its  knowledge  affecting  the  validity  of  the  check.  The 
ordinary  rule  as  to  the  liability  of  a  bank  upon  its  certification  of 
a  check,  and  upon  declarations  of  its  teller  as  to  such  certification, 
only  apply  where  the  bank  has  no  special  knowledge  of  the 
history  of  the  instrument  and  of  the  facts  connected  with  the 
drawing,  delivery,  indorsement,  validity,  &c.  Where  the  bank 
is  in  possession  of  special  knowledge,  it  is  under  the  same  obliga- 
tion as  natural  persons  to  disclose  it,  when  omission  must  result 
in  injury  to  the  person  applying  to  them  for  any  information  on 
the  subject  with  an  evident  purpose  of  acting  upon  infoi-mation 
so  obtained,  though  questioned  only  that  payment  had  been 
stopped,  if  the  paying  teller  was  not  informed  by  the  cashier  or 
other  officer  receiving  notice  to  stop  payment,  there  is  an  omis- 
sion of  a  plain  duty  on  the  part  of  this  official.  With  knowledge 
of  all  the  facts,  the  defendant  suffered  the  plaintiffs  to  consider 
and  deal  with  the  paper  as  genuine  in  all  respects  and  is  estopped 
from  denying  it.' 

The  certification  of  a  check  written  out  would  contain  a  state- 
ment that  the  drawer  had  funds  sufiicient  to  meet  it  in  the  bank, 
applicable  to  its  payment,  and  an  agreement  on  behalf  of  the 
bank  that  these  funds  should  be  retained  and  paid  upon  the 
check  whenever  it  was  presented.     The  cashier  has  a  right  by 

'  Clews  V.  Bank,  8  Daly,  476. 
Vol.  I.— 84 


1330  The  Law  of  Estoppel. 

virtue  of  his  office,  to  make  this  certificate  when  tlic  drawer  has 
funds.'  Even  if  the  drawer  had  no  funds,  the  certificate  of  the 
jasliier  would  hold  the  bank  when  the  transaction  was  within  the 
range  of  its  legitimate  business,  but  the  acts  of  the  cashier,  or  other 
officer  of  the  bank,  only  binds  the  stockholders  when  such  acts 
are  within  the  regular  and  just  sphere  of  banking  transactions." 

§  1193.  A  bank  is  liable  for  the  fraud  or  mistake  of  its  cashier 
or  clerk,  in  the  entries  in  its  books,  and  in  the  false  accounts  of 
deposits.'  Thus,  a  depositor  in  a  national  bank  requested  a  cer- 
tificate of  deposit,  drawing  interest,  for  a  portion  of  his  dcj^osit. 
The  teller  gave  him  a  certificate  purporting  to  be  issued  by  B.  A: 
Co.,  a  private  banking  firm,  and  informed  him,  in  presence  of 
the  cashier  of  the  bank,  that  this  was  the  bank's  certificate,  ui)on 
which  assurance  the  depositor  accepted  it.  The  members  of  the 
firm  were  the  managing  officers  of  the  bank,  but  had  a  separate 
place  of  business  in  the  same  town.  The  bank  was  liable  to 
the  depositor  for  the  amount  of  his  deposit.*  So,  where  the 
president  of  a  national  bank  instructed  its  correspondent  bank  to 
charge  up  against  the  bank  of  which  he  was  president  the  amount 
of  a  note  given  by  him,  in  payment  of  such  note,  and  an  account 
was  rendered  showing  the  transaction,  the  bank  Avas  estopped 
from  denying  the  correctness  of  the  charge  in  an  action  by  a 
receiver,  subsequently  appointed,  seeking  to  set  aside  the  trans- 
action.* A  bank  that  has  received  money  from  a  customer  and 
credited  to  him  on  its  books,  may  not  be  heard  subsequently  to 
allege  that  the  deposit  belonged  to  some  one  else.* 

§  1194.  It  is  sufficient  evidence  of  the  ratification  by  a  bank, 
of  the  unauthorized  acts  of  its  cashier,  in  assigning  an  account  to 
other  parties  and  taking  their  note  in  payment  therefor,  if  it 
appears  that  the  whole  transaction  is  regularly  and  clearly  entered 
on  the  books  of  the  bank,  subject  to  the  inspection  of  committees 
of  directors  appointed  to  examine  such  books,  whose  report  that 

>  Cook  V.  Bank,  02  N.  Y.  !)6.  1  Parsons  Sel.  Cas.  248. 

«  Lloyd  V.  Bank,  15  Pa.  St.  172.  *  Steckel   y.  Bank,  93  Pa.  St.  370; 

»  Bank  v.  Bank,  17  INIass.  1;   Bank  S.  C,  39  Am.  R.  758;  Zieglcr  v.  Bank, 

V.  Bank,  17  Mass.  33;  Foster  v.  Bank,  93  Pa.  St.  393. 

17    Mass.    479;     Manhattan    Co.    v.  ^  Burton  v.  Burley,  9  Biss.  253. 

Lydigs,  4  Johns.  377;   Bank  v.  Bank,  »  Bank  v.  jMason,  95  Pa.  St.  113;  S. 

C,  40  Am.  R.  632. 


CORPOEATIONS.  1331 

the  books  are  correct  has  been  adopted  by  the  board ;  and  that 
such  note  is  mentioned  in  the  sworn  reports  made  to  the  state 
bank  comptroller,  as  a  part  of  the  assets  of  the  bank/  A  subse- 
quent ratification  by  the  directors  of  a  bank  of  the  unauthorized 
act  of  its  cashier,  is  equivalent  to  previous  express  authority  ; 
and  such  ratification  may  be  made  by  mere  silence  and  acquies- 
cence on  the  part  of  the  board,  after  they  receive  knowledge  of 
the  transaction.  Thus,  where  the  cashier  of  a  bank,  without 
express  authority  for  that  purpose,  gave  a  note  in  the  name  of 
the  bank  for  a  loan  made  to  it,  and  the  board  of  directors  received 
and  appropriated  the  money  loaned  ;  or  at  least,  acquiesced  in 
such  appropriation,  and  suffered  such  note  to  be  several  times 
renewed,  and  several  payments  of  interest  to  be  made  thereon, 
such  acts  on  their  part  are  a  sutficient  ratification  of  the  note.* 

If  the  proper  officers  of  a  bank  negotiate  an  accommodation 
bill,  in  which  it  has  no  interest,  to  another  bank,  representing  it  to 
belong  to  their  bank,  upon  the  faith  of  which  representation,  and 
in  the  usual  course  of  business,  the  latter  discounts  it,  the  former 
is  estopped  to  say  it  was  indorsed  without  authority.' 

§  1195.  Corporations  can  act  only  through  their  officers,  and 
are  bound  by  their  acts,  and  whenever  such  officers  have  the 
power  to  waive  matters  by  an  indorsement,  under  the  terms  of  a 
policy,  they  may  waive  by  their  acts,  and  the  couipany  will  be 
bound  ;*  a  contrary  doctrine  would  be  to  sanction  the  perpetra- 
tion of  a  fraud  by  the  company  upon  the  insured.*  By  a  clause 
in  the  polic}^,  agents  of  the  company  were  permitted  to  give 
assent  to  assignments  thereof,  but  were  prohibited  from  waiving 
any  condition  therein,  the  authority  to  assent  to  an  assignment 

'  Bank  v.  Lathrop,  13  Wis.  466.  Ins.  Co.,  81  Ind.  300;  Ins.  Co.  v.  Gar- 

•^  Bank  v.  Bank,  16  Wis.  120.  gett,  42  Mich.  289;  Martin  v.  Ins.  Co., 

3  Bank  v.  Bank,  13  N.  Y.  309;  Bank     44  N.  J.  L.  273. 

V.  Bank,  16  Gray,  354;   Bank  v.  Per-         ^  Iqs,   Co.    v.    Crame,  16  Md.  295; 

kins,  29  N.  Y.  554;  Everett   v.  U.  S.,  Ins.  Co.   v.   Wilkinson,  13  Wall.  222; 

6  Port.  166;  Barnes  V.  Bank,  19  K  Y.  Franklin  v.    Ins.    Co.,   42   Mo.     466; 

156;  Meads  v.    Bank,   25  N.   Y.  143;  Rowley  v.    Ins.   Co.,  36   N.   Y.  550; 

Bank  V.  Bank,  14  N.  Y.  643.  Coombs  v.    Ins.    Co.,    43    Mo.    150; 

4  Parker  v.  Ins.  Co.,  59  N.  Y.  1;  Hyatt  v.  Waite,  37  Barb.  29;  Ins.  Co. 
Ins.  Co.  V.  Earle,  33  Mich.  143;  Blake  v.  Gusdorf,  43  Md.  507;  Ilorwitz  v. 
v.  ins.  Co..  12  Gray,  271;  Pitney  v.  Ins.  Co.,  40  Mo.  557;  Ins.  Co.  v.  Cary, 
Ins.    Co  ,    61  Barb.  345;   Willcuts  v.  83  111.  453. 


1332 


The  Law  of  Estoppel. 


included  authority  to  waive  a  forfeiture,  because  of  a  transfer  of 
tlic  property,  or  to  consent  to  the  transfer  ;  and  that  an  assent  by 
the  agent  to  an  assignment  to  one  to  wlioni  the  property  had  been 
transferred  was  such  waivei"  or  consent.'  A  verbal  contract  to 
insure,  based  upon  a  sufficient  consideration,  and  made  by  a  party 
having  an  insurable  interest  in  property,  with  an  agent  having  the 
requisite  authority  to  bind  his  principal  by  such  contract,  may  be 
legal  and  binding  upon  the  insurance  company.* 

§  1196.  An  insurance  company,  establishing  a  local  agency,  ia 
as  responsible  to  the  parties  with  whom  they  transact  business  for 
the  acts  and  declarations  of  their  agent,  within  the  scope  of  his 
employment,  as  if  they  proceeded  from  the  principal  offices  of  the 
company.^  The  company  is  bound  by  all  the  acts  of  its  agents 
within  the  scope  of  his  apparent  authority,  unless  notice  is' given 
the  assured,  that  with  reference  '  to  matters  within  the  scope  of 
his  apparent  authority,  certain  limitations  are  imposed  upon  the 
agent.  The  question  is,  not  what  the  powers  of  the  agent  in  fact 
were,  but  what  were  his  apparent  powers,  that  is,  what  liad  the 
assured  a  right  to  believe  were  given  to  the  agent.''     And  such 


1  Bcuniiigboff  V.  Ins.  Co.,  93  N.  Y. 
493. 

2  Ills.  Co.  V.  Wilcox,  57  111.  4S0; 
Ins.  Co.  V.  Ins.  Co.,  19  IIow.  318; 
Hamilton  v.  Ins.  Co.,  5  Pa.  St.  339; 
Davenport  v.  Ins.  Co.,  17  Iowa,  376; 
Brapjdon  v.  Ins.  Co.,  42  Me.  259;  An- 
drews V.  Ins.  Co.,  3  Mason,  6;  Mc- 
Cullough  V.  Ins.  Co.,  1  Pick.  278; 
Palm  V.  Ins.  Co.,  20  Ohio,  539;  Church 
V.  Ins.  Co.,  19  N.  Y.  305;  Audobou 
V.  Ins.  Co.,  27  N.Y.  316. 

2  Bank  v.  Ins.  Co.,  31  Conn.  517; 
Vilas  V.  Ins.  Co.,  73  N.  Y.  590; 
Plumb  V.  Ins.  Co.,  18  N.  Y.  392; 
Sheppard  v.  Ins.  Co.,  21  W.  Va.  381; 
Ins.  Co.  V.  Wilkinson,  13  Wall.  222; 
Ins.  Co.  V.  Baker,  94  U.  S.  GIO;  Baker 
V.  Ins.  Co.,  64  N.  Y.  649;  Ilorwitz  v. 
Ins.  Co.,  40  3Io.  557;  xVyres  v.  Ins. 
Co.,  17  Iowa,  176;  Ins.  Co.  v.  Bniner, 
23  Pa.  St.  50. 

4  Mark  V.    Ins.    Co.,   24  Hun,  565; 


Schomer  v.  Ins.  Co.,  50  Wis.  575; 
Fisbback  v.  Ins.  Co.,  54  Cai.  422; 
Frink  v.  Ins.  Co.,  80  N.  Y.  108; 
Broadheadv.  Ins.  Co.,  23  Hun,  397; 
Ins.  Co.  V.  Cooper,  50  Pa.  St.  331; 
Redstrake  v.  Ins.  Co.,  44 N.  J.  L.  294; 
Ins.  Co.  V.  Davis,  131  Mass.  316;  Ins. 
Co.  V.  Gillett,  54  Md.  212;  Titus  v. 
Ins.  Co.,  81  N.  Y.  410;  Ins.  Co.  v. 
Wilkinson,  13  Wall.  222;  AYheeler  v. 
Ins.  Co.,  131  Mass.  1;  Martin  v.  [ns. 
Co.,  44  N.  J.  L.  273;  Kichmond  v. 
Ins.  Co.,  79  xN".  Y.  230;  Ins.  Co.  v. 
Fabrenkrug,  68  111.  463;  Ins.  Co.  v. 
Association,  43  N.  J.  L.  652;  Grattan 
V.  Ins.  Co.,  80  K  Y.  281;  S.  C,  36 
Am.  ii.  617;  Ins.  Co.  v.  Gallatin,  48 
Wis.  30;  Ins.  Co.  v.  Maguire,  51  111. 
351;  Stockton  v.  Ins.  Co.,  33  La.  Ann. 
577;  S.  C,  39  Am.  R.  247;  Bennett  v. 
Ins.  Co.,  81  N.  Y.  273;  S.  C,  37  Am. 
R.  501;  Badger  v.  Ins.  Co..  49  Wis. 
389;  Ins.  Co.  v.  Davison,  30  Md.  104- 


COEPOKATIONS. 


1333 


company  is  estopped  bj  the  statements  of  any  party,  whom  it 
holds  out  to  the  puhlio  as  its  agent,  within  the  scope  of  their 
authority,  however  much  he  may  have  exceeded  it  in  particulars,* 
even  though  such  person  has  authorit}^  to  procure  one  particuhir 
risk/  Thus,  under  a  condition  in  a  policy  of  insurance,  that  "  if 
the  interest  of  the  assured  in  the  property  be  any  other  than  the 
entire,  unconditional  and  sole  ownership,  it  must  be  so  represented 
to  the  company  and  so  expressed  in  the  written  part  of  the 
policy,"  otherwise  the  policy  to  be  void,  it  was  held,  even  if  the 
assured  w'as  not  vested  with  the  "  entire,  unconditional  and  sole 
ownership  "  of  the  property,  yet  if  the  real  character  of  the  title 
\vas  known  to  the  officers  of  the  company,  and  the  company,  hav- 
ing such  knowledge,  chose  to  assume  the  risk,  it  would  be  liable, 
in  case  of  loss,  notwithstanding  the  nature  of  the  title  was  not 
expressed  in  the  written  part  of  the  policy.  The  company  having, 
knowledge  of  the  nature  of  the  interest  claimed  by  the  assured, 
and  he  not  being  present,  it  was  the  duty  of  the  policy  clerk  act- 
ing for  the  company  to  have  expressed  the  nature  of  that  owner- 
ship in  the  policy.  Where  insurance  is  procured  to  be  taken  by 
a  soliciting  broker,  who  is  in  fact  acting  as  the  agent  of  the  com- 
pan}',  declarations  and  explanations  made  by  the  assured  to  such 
agent,  concerning  the  character  of  the  ownership  of  the  property, 


Ins.  Co.  V.  McCrea,  8  Lea,  513;  S.  C, 
41  Am.  R.  247;  Guilluud  v.  Ins.  Co., 
9  111.  App.  581;  Castner  v.  Ins.  Co., 
46  Mich.  16;  Brand  rip  v.  Ins.  Co.,  27 
Minn.  393;  Carson  v.  Ins.  Co.,  43  N. 
J.  L.  300;  S.  C,  39  Am.  R.  584;  Will- 
iams V.  Ins.  Co.,  54  Cal.  442;  Ins.  Co. 
V.  Murray,  73  Pa.  St.  28;  Baile  v.  Ins. 
Co.,  73  Mo.  371';  Ins.  Co.  v.  Beck,  77 
Ind.  203;  S.  C,  40  Am.  R.  295;  Ins. 
Co.  V.  Kelly,  24  Ohio  St.  345;  Put- 
nam V.  Ins.  Co.,  18  Blatchf.  368; 
Couch  V.  Ins.  Co.,  25  Hun,  469;  In.s. 
Co.  V.  Jacobs,  56  Tex.  366;  Walsh  v. 
Ins.  Co.,  54  Vt.  351;  Thompson  v. 
Ins.  Co.,  104  U.  S.  252;  Kelly  v.  Ins. 
Co.,  3  Mo.  App.  554;  Eagan  v.  Ins. 
Co.,  10  W.  Ya.  583;  Ide  v.  Ins.  Co.,  2 
Biss.  333;  Ins.  Co.  v.  Neyland,  9  Bush, 
40  Ins.  Co.  V.  Chipp,  93  111.  96;  Carr 


V.  Ins.  Co. ,  2  Mo.  App.  466 ;  Hornthal  v. 
Ins.  Co.,  88  N.  C.71;  Collins  v.  Ins.  Co., 
79  N.  C.  279;  Argall  v.  Ins.  Co.,  81 
N.  C.  355;  Palmer  v.  Ins.  Co.,  44  Wis. 
201;   Ins.  Co.  v.  Luttrell,  89  111.  314. 

'  Perkins  v.  Ins.  Co.,  4  Cow.  645; 
Ins.  Co.  V.  Ins.  Co.,  20  Barb.  468; 
Lightbody  v.  Ins.  Co.,  23  Wend.  18; 
Ins.  Co.  V.  Pierce,  75  111.  426;  Ins.  Co. 
V.  Shettler,  38  111.  170;  Ide  v.  Ins.  Co., 
2  Biss.  333;  Ins.  Co.  v.  Stein,  5  Bush, 
652;  Hanson  v.  In.s.  Co.,  9  Allen,  231; 
Mitchell  V.  Ins.  Co.,  51  Pa.  St.  402; 
Ins.  Co.  V.  Brunner,  23  Pa.  St.  60; 
Plumb  V.  Ins.  Co.,  18  N.  Y.  392;  Fogg 
V.  Griffin,  2  Allen,  1;  Ins.  Co.  v.  Mal- 
lard, 57  Ga.  64;  Ins.  Co.  v.  White,  106 
111.  67. 

^  Mowry  v.  Rosendale,  74  N.  Y, 
360 


1334  The  Law  of  Estoppel. 

will  be  notice  to  the  company,  and  tliis  notwithstanding  there  be 
a  condition  in  the  policy  that  such  broker  shall  be  deemed  the 
agent  of  the  assured  and  not  of  the  company,' 

§  1197.  An  agent  may,  if  authorized  by  a  course  of  business, 
waive  conditions  and  stipulations  in  the  policy,  and  the  company 
may  be  bound  thereby,  notwithstanding  the  policy  says  he  may 
not  do  so."  The  knowledge  possessed  by  an  agent  authorized  to 
issue  policies,  of  facts  material  to  the  risk,  is  knowledge  of  the 
company  ;  and  its  effect  to  raise  an  estoppel  precluding  the  com- 
pany to  evade  the  policy  by  reason  of  such  facts  is  not  weakened 
by  such  provisions  in  the  policy  that  the  agent  has  no  authority 
to  waive  its  conditions,  or  otherwise  forbidding  any  implied 
waiver.'  Mere  knowledge  by  the  agent  issuing  the  policy  or 
renewing  it,  and  receiving  the  premium,  of  facts  constituting  a 
breach  of  any  of  its  conditions,  is  a  waiver  by  him  and  by  the 
company  of  the  condition  so  known  to  be  broken.  It  is  put  upon 
the  ground  that  notice  to  the  agent  is  notice  to  the  principal,  and 
that  whatever  the  agent  knows,  the  companj'  must  be  regarded  as 
knowing;  and  that,  as  it  would  be  a  gross  fraud  for  the  company 
knowingly  to  receive  the  premium  for  issuing  a  policy  on  which 
they  did  not  intend  to  be  liable,  and  which  they  intended  to  treat 
as  void  in  case  of  loss,  so  it  is  equally  a  fraud,  and  their  fraud  for 
their  agent  to  do  so  ;  for  his  knowledge  was  their  knowledge,  and 
his  acts  their  acts,  for  all  the  purposes  of  the  transaction.* 

'  Ins.  Co.  V.  Cbipp,  93  111.  94.  55    111.    213;   Ins.    Co.   v.   LeAvis,   30 

sins.  Co.  V.  Norton,  96  U.  S.  234;  Mich.   40;  Cnrr  v.    Ins.   Co.,  2  Mo. 

Ins.    Co.   V.    "Wall,   31   Ohio    St.  628;  App.  466;  Palmer  v.  Ins.  Co.,  44  Wis. 

Stolle  V.  Ins.    Co.,    10  W.    Va.    546;  201;  McCulloch  v.  Norwood,  58  N. 

Murphy  v.    Ins.    Co.,  59  Tenn.  446;  Y.  562;  Van  Scliaick  v.  Ins.  Co.,  68 

Ins.  Co.  V.  Stanton,  57  111.  354;  Carson  N.  Y.  434;  Pelton  v.  Ins.  Co.,  77   N. 

V.    Ins.   Co.,  43  N.  J.  L.  300;   S.  C,  Y.  605;  Button  v.  Ins.  Co.,  7  Ins.  L. 

39  Am.  R.  584;   Ins.  Co.  v.  McCrea,  8  J.    675;   Bank   v.  Ins.  Co.,  31    Conn. 

Lea,  541;  S.  C,  41  Am.  K.  647.  526;    Ins.  Co.  v.  Curran,  45  Mo.  142; 

3  Ins.  Co.  V.  Throop,  22  Mich.  146;  Heaton    v.    Ins.    Co.,    7   R.    I.    502; 

Ins.    Co.  V.  Spencer,  53  Pa.  St.  353;  Nichols  v.  Ins.  Co.,  1  Allen,  63. 

Rowley  v.  Ins.  Co..  40  N.  Y.  557;  Ins.         *  Campbell  v.  Ins.  Co.,  37  N.  H.  35; 

Co.  V.  Wells,  19  A.  L.  J.  263;  Ins.  Co.  Collins    v.    Ins.   Co.',   79    N.   C.  279; 

V.    West,    76    Va.  487;    Ins.    Co.    v.  Marshall  v.  Ins.  Co.,  27  N.  H.  157; 

Wilkinson,  13  Wall.  222;   Ins.  Co.  v.  Argall    v.    Ins.    Co.,    84    N.    C.  355; 

Fay,  22  Mich.  473;  Ins.   Co.  v.  01m-  Masters  v.  Ins.  Co.,  11  Barb.  624;  Ins. 

stead,  21  Mich.  246;  Ins.  Co.  v.  Eddy,  Co.  v.  Luttrell,  89  111.'314;  Ins.  Co.  v. 


Corporations.  1335 

§  1198.  The  doctrine  of  equitable  estoppel  has,  especially  in 
insurance  cases,  been  extended  and  applied  at  law  as  well  as  in 
equity,  and  the  current  and  weight  of  judicial  precedent  in  this 
country,  have  established  the  proposition  that  in  such  cases  the 
estoppel  is  equally  available  in  either  tribunal.  Strictly,  the  more 
appropriate  remedy  would  be  a  suit  in  chancery  to  refoi-m  the 
contract.  Those  courts  that  reject  the  parol  evidence,  in  tlie  great 
majority  of  cases,  would  relieve  in  that  mode.  But  the  tendency 
is  to  attain  the  same  result  at  law,  by  allowing  the  truth  to  be 
proved  by  parol,  and  giving  to  it  the  force  of  an  estoppel  in  pais. 
Whether  the  disclosures  of  the  assured  are  made  warranties  or 
representations  is  immaterial.  The  testimonj'  shows  what  answers 
were  given  to  the  interrogatories  to  the  'agent.  They  bring  to 
his  notice  the  actual  facts.  If  the  agent  writes  down  or  dictates 
an  erroneous  deduction  or  result,  he  assumes  for  his  principal  that 
it  is  true,  or  that  it  is  equivalent  of  the  verbal  disclosure.  The 
assured  would  be  regarded  as  declaring  to  the  insurer  :  "  If  the 
answer,  as  written,  is  your  understanding  of  the  facts  disclosed  to 
your  agent,  then  I  am  bound  by  them  as  'warranties,'  or  as 
representations,  as  the  case  may  be.'" 

In  a  suit  in  chancery  for  reformation  of  the  contract,  that 
court  would  esteem  the  verbal  statements  of  the  insurer,  in  answer 
to  the  interrogatories,  as  incorporated  into  the  contract,  and 
decree  accordingly,  if  there  were  no  other  objections.  A  court  of 
law  reaches  precisely'  the  same  end,  by  putting  the  insurer  under 
an  estoppel  to  insist  on  a  breach  of  the  warranty,  or  the  untruth 
of  the  representation.  It  is  but  another  addition  to  the  numerous 
instances  where  courts  of  law  have  borrowed  principles  from  the 
equity  courts,  and  adopted  and  enforced  them.  Nor  should  any 
limitation  be  put  upon  the  naturalization  into  the  common  law  of 
equitable  principles,  when  its  methods  of  procedure  and  forms  of 
action  are  adapted  to  render  complete  justice.     In  most  of  the 

Hall,  12  Mich.  214;   Coombs  v.  Ins.  Green  v.  Ins.  Co.,  11  R.  I.  434;   Ins. 

Co.,  34  N.  J.  E.  403;   Miner  v.  Ins.  Co.   v.  McCrea,  8  Lea,  541;   S.  C,  41 

Co.,  27  Wis.  693;  Keenan  v.  Ins.  Co.,  Am.  R.  641;  Horntbal  v.  Ins.  Co.,  88 

12   Iowa,  126;   McEwen  v.  Ins.  Co.,  N.   C.    71;   Brandrup  v.  Ins.  Co.,  27 

5Hill,  101;yielev.  Ins.Co.,26Iowa,  9;  Minn.    393;   Putnam  v.    Ins.  Co.,  18 

Can  V.    Ins.    Co.,   2  Mo.    App.  466;  Blatchf.  368. 

» Ins.  Co.  V.  Mahone,  21  Wall.  153. 


1386  The  Law  of  Estoppel. 

cases  in  which  this  equitable  estoppel  has  been  applied,  are  those 
where  the  acts,  representations,  or  omissions  of  the  agents  of  the 
companies,  precede  or  attend  the  issuing  of  policies.  But  it 
applies  with  equal  force  and  effect,  where  facts  arise  during  the 
currency  of  the  contracts,  as  for  example,  where  in  case  of  insur- 
ance by  a  mutual  insurance  company,  assessments  have  been 
made  and  received  by  the  company  on  the  premium  note,  or 
where  premiums  have  been  received  after  knowledge,  actual  or 
constructive,  of  the  invalidity  of  the  policy  ah  initio^  or  of  a  sub- 
sequent breach  of  its  conditions.' 

§  1199,  In  the  case  of  Insurance  Co.  v.  Wilkinson,  the 
Supreme  Court  of  the  United  States,  by  Mr.  Justice  Miller,  say: 
'•  In  the  case  before  us,  a  paper  is  offered  in  evidence  against  the 
plaintiff  containing  a  representation  concerning  a  matter  material 
to  the  contract  on  which  the  suit  is  brought,  and  it  is  not  denied 
that  he  signed  the  instrument,  and  that  the  representation  is 
untrue.  But  the  parol  testimony  makes  it  clear  beyond  a  ques- 
tion that  this  party  did  not  intend  to  make  that  representation 
when  he  signed  the  paper,  and  did  not  know  he  was  doing  so, 
and,  in  fact,  had  refused  to  make  any  statement  on  that  sub- 
ject. If  the  writing  containing  this  representation  had  been 
prepared  and  signed  by  ihe  plaintiff',  in  his  application  for 
a  policy  of  insurance  on  the  life  of  his  wife,  and  if  the  repre- 
sentation complained  of  had  been  inserted  by  himself,  or  by 
some  one  who  was  his  agent  alone  in  the  matter,  and  forwarded 
to  the  principal  office  of  the  defendant  corporation,  and  acted 
upon  as  true  by  the  officers  of  the  company,  it  is  easy  to  see 
that  justice  would  authorize  them  to  hold  him  to  the  truth 
of  the  statement,  and  that,  as  they  bad  no  part  in  the  mis- 
take which  he  made,  or  in  the  making  of  the  instrument  whic'i 
did  not  truly  represent  what  he  intended,  he  should  not,  after 
the  event,  be  permitted  to  show  his  own  mistake  or  carelessness, 
to  the  prejudice  of  the  corporation. 

"If,  however,  we  su])pose  the  party  making  the  insurance  to 
Lave   been   an   individual,  and  to  have  been    present  when   the 

'  Ins.  Co.  V.  Stanton,  07  111.  354;  v.  Ins.  Co.,  25  Conn.  207,  Wing  v. 
Peck  V,  Ins.  Co.,  22  Conn.  575;  Buck  Ha-ney,  27  E.  L.  i  E.  140;  Beuion  v. 
be  ev.  Ins.  Co.,  58  Barb.  541;  Sheldon       Ins.  Co.,*  25  Conn.  548. 


Corporations.  1337 

application  was  signed,  and  soliciting  the  assured  to  make  the 
contract  of  insurance,  and  that  the  insurer  himself  wrote  out  all 
these  representations,  and  was  told  by  the  plaintiff  and  his  wife 
that  they  knew  nothing  at  all  of  this  particular  subject  of  inquiry, 
and  that  they  refused  to  make  any  statement  about  it,  and  yet, 
knowing  all  this,  wrote  the  representation  to  suit  himself,  it  is 
equally  clear  that  for  the  insurer  to  insist  that  the  policy  is  void 
because  it  contains  this  statement,  would  be  an  act  of  bad  faith, 
and  of  the  grossest  injustice  and  dishonesty.  And  the  reason  for 
this  is  that  the  representation  was  not  the  statement  of  the  plaint- 
iff, and  that  the  defendant  knew  it  was  not  when  he  made  the 
contract,  and  that  it  was  made  by  the  defendant,  who  procured 
the  plaintiff's  signature  thereto.  It  is  in  precisely  such  case  as 
this  that  courts  of  law  in  modern  times  have  introduced  the  doc- 
trine of  equitable  estoppels,  or,  as  it  is  sometimes  called,  estop- 
pels «njf?cm.  The  principle  is  that  where  one  party  has,  by  his 
representations  or  his  conduct,  induced  the  other  party  to  a 
transaction  to  give  him  an  advantage  which  it  would  be  against 
equity  and  good  conscience  for  him  to  assert,  he  would  not  in  a 
court  of  justice  be  permitted  to  avail  himself  of  that  advantage. 
And,  although  the  cases  to  which  this  principle  is  to  be  applied 
are  not  as  well  defined  as  could  be  wished,  the  general  doctrine  is 
well  understood,  and  is  applied  by  courts  of  law,  as  well  as  equity, 
where  the  technical  advantage  thus  obtained  is  set  up  and  relied 
on  to  defeat  the  ends  of  justice  or  establish  a  dishonest  claim. 
It  has  been  applied  to  the  precise  class  of  cases  of  the  one  before 
us  in  numerous  well-considered  judgments  by  the  courts  of  this 
country.' 

§  1200.  "  Indeed,  the  doctrine  is  so  well  understood  and  so 
often  enforced  that,  if  in  the  transaction  we  are  now  considering. 
Ball,  the  insurance  agent  who  made  out  the  application,  had  been 
in  fact  the  underwriter  of  the  policy,  no  one  would  doubt  its 
applicability  to  the  present  case.  Yet  the  proposition  admits  of 
as  little  doubt  that  if  Ball  was  the  agent  of  the  insurance  com- 
pany, and  not  of  the  plaintiff,  in  what  he  did  in  filling  up  the 

•  Plumb  V.  Ins.  Co.,  18  N.  Y.  392;      Bank  v.  Ins.  Co.,  31  Conn.  526;  Combs 
Rowley  v.   Ins.    Co.,   36  N.  Y.  550;     v.  Ins.  Co. ,  43  Mo.  148. 


1338  The  Law  of  Estoppel. 

application,  the  company  must  be  held  to  stand  just  as  he  would 
if  ho  were  the  principal. 

"Although  the  very-well-considered  brief  of  counsel  for 
plaintiff  in  error  takes  no  issue  on  this  point,  it  is  obvious  that 
the  soundness  of  the  court's  instructions  nnist  be  tested  mainly 
by  the  answer  to  be  given  to  the  question,  '  Whose  agent  was 
Ball  in  tilling  up  the  application?' 

§  1201.  "  This  question  has  been  decided  differently  by  courts 
of  the  highest  respectability,  in  cases  precisely  analogous  to  the 
present.  It  is  not  to  be  denied  that  the  application,  logically 
considered,  is  the  work  of  the  assured,  and,  if  left  to  himself  or 
to  such  assistance  as  he  might  select,  the  person  so  selected  would 
be  his  agent,  and  he  alone  would  be  responsible.  On  the  other 
hand,  it  is  well  known,  so  well  that  no  court  would  be  justiticd 
in  shutting  its  eyes  to  it,  that  insurance  companies  organized 
under  the  laws  of  one  State,  and  having  in  that  State  their 
principal  business  office,  send  these  agents  all  over  the  land,  with 
directions  to  solicit  and  procure  applications  for  policies,  furnish- 
ing them  with  printed  arguments  in  favor  of  the  value  and  neces- 
sity of  life  insurance,  and  of  the  special  advantages  of  the 
corporation  which  the  agent  represents.  They  pay  these  agents 
large  commissions  on  the  premiums  thus  obtained,  and  the  poli- 
cies are  delivered  at  their  hands  to  the  assured.  The  agents  are 
stimulated  by  letters  and  instructions  to  activity  in  procuring 
contracts,  and  the  party  who  is  in  this  manner  induced  to  take 
out  a  policy,  rarely  sees  or  knows  anything  about  the  company  or 
its  officers  by  whom  it  is  issued,  but  looks  to  and  relies  upon  the 
agent  who  has  persuaded  him  to  effect  insurance  as  the  full  and 
complete  representative  of  the  company,  in  all  that  is  said  or 
done  in  making  the  contract.  Has  he  not  a  right  to  so  regard 
him?  It  is  quite  true  that  the  reports  of  judicial  decisions  are 
tilled  with  the  efforts  of  these  companies,  by  their  counsel,  to 
establish  the  doctrine  that  they  can  do  all  this,  and  yet  limit  their 
responsibility  for  the  acts  of  these  agents  to  the  simple  receipt  of 
the  premium  and  delivery  of  the  policy,  the  argument  being  that, 
as  to  all  other  acts  of  the  agent,  he  is  the  agent  of  the  assured. 
This  proposition  is  not  without  support  in  some  of  the  earlier 
decisions  on  the  subject ;  and,  at  a  time  when  insurance  compa- 
nies waited  for  parties  to  come  to  them  to  seek  assurance,  or  to 


COEPOEATIONS.  1339 

forward  applications  on  tlieir  own  motion,  the  doctrine  had  a 
reasonable  foundation  to  rest  upon.  But  to  apply  such  a  doc- 
trine, in  its  full  force  to  the  system  of  selling  policies  tlirougli 
agents,  which  we  have  described,  would  be  a  snare  and  a  delu- 
sion, leading,  as  it  has  done  in  numerous  instances,  to  the  grossest 
frauds,  of  which  the  insurance  corporations  receive  the  benefits, 
and  the  parties  supposing  themselves  insured  are  the  victims. 

§  1202.  "  The  tendency  of  the  modern  decisions  in  this  coun- 
try is  steadily  in  the  opposite  dii-ection.  The  powers  of  the 
agent  are,  prima  facie,  co  extensive  with  the  business  intrusted  to 
his  care,  and  will  not  be  narrowed  by  limitations  not  communi- 
cated to  the  person  with  whom  he  deals.' 

"  By  the  interested  or  officious  zeal  of  the  agents  employed 
by  the  insurance  companies  in  the  wish  to  outbid  each  other  and 
procure  customers,  they  not  un frequently  mislead  the  insured  by 
a  false  or  erroneous  statement  of  what  the  application  should 
contain,  or,  taking  the  preparation  of  it  into  their  own  hands, 
procure  his  signature  by  an  assurance  that  it  is  properly  drawn, 
and  will  meet  the  requirements  of  the  policy.  The  better  opinion 
seems  to  be  that,  when  this  course  is  pursued,  the  description  of 
the  risk  should,  though  nominally  proceeding  from  the  insured, 
be  regarded  as  the  act  of  the  insurers.'"  The  modern  decisions 
fully  sustain  this  proposition,  and  they  seem  to  us  founded  in 
reason  and  justice,  and  meet  our  entire  approval.  This  principle 
does  not  admit  oral  testimony  to  vary  or  contradict  that  which  is 
in  writing,  but  it  goes  upon  the  idea  that  the  writing  offered  in 
evidence  was  not  the  instrument  of  the  party  whose  name  is 
signed  to  it ;  that  it  was  procured  under  such  circumstances  by 
the  other  side  as  estops  that  side  from  using  it  or  relying  on  its 
contents  ;  not  that  it  may  be  contradicted  b}'  oral  testimony,  but 
that  it  may  be  shown  by  such  testimony  that  it  cannot  be  lawfully 
used  against  the  party  whose  name  is  signed  to  it.^ 

'  Bc'bee  v.    Ins.    Co.,  25  Conn.  51;  Mowry  v.  Rosendale,  74  K  Y.  360; 

Ins.  Co.  V.  Scliollenbergcr,  44  Pa.  St.  Campbell   v.  Ins.  Co.,    37   N.  H.  35; 

259;   Beal  v.  Ins.    Co.,  16  Wis.    241;  Maher    v.  Ins.  Co.,    67  N.    Y.    232; 

Davenport  V.  Ins.  Co.,  17  Iowa,  276.  Rowley  v.    Ins.   Co.,   36  N.   Y.  550; 

«  Rowley  V.  Ins.  Co..  36  N.  Y.  550.  Plumb  v.  Ins.  Co.,  18  N.  Y.  392;  Vilas 

3  Ins.  Co.    V.    Wilkinson,   13  Wall.  v.  Ins.  Co.,   72  N.  Y.    590;  Ins.    Co. 

232;  Baker  v.  Ins.  Co.,  64  N.  Y.  648;  v.  Baker,  94  U.  S.  610. 

Ins.    Co.  v.  Mahone,   21   Wall.   152; 


1340  The  Law  of  Estoppel. 

§  1203.  The  principle  may  be  thus  stated.  A  company,  whether 
its  business  is  life  or  fire  insurance,  cannot  avail  itself  of  any  mis- 
statement or  omission  in  the  application  constituting  a  warranty 
or  any  representation  on  the  part  of  the  insured,  wliere  such 
application  is  prepared  by  the  agent  with  knowledge  of  the  facts, 
or  if  he  is  intrusted  by  the  assured  to  make  the  application,  and 
this  even  though  the  policy,  or  the  by-laws  of  the  company  made 
known  to  the  assured,  provide  that  the  person  taking  the  survey 
and  preparing  the  application  shall  be  the  agent  of  the  applicant, 
who  shall  be  responsible  for  such  agent's  representations.  The 
necrlect  and  mistakes  of  the  accent  are  the  ne2:lect  and  mistakes  of 
the  company.'  As  to  all  preliminary  negotiations,  the  agent  acts 
only  on  behalf  of  the  company  ;  and  a  company  may  not  escape 
the  consequences  of  the  fraud  or  mistake  of  the  agent  by  inserting 
a  stipulation  in  the  policy  that  such  agent  shall  be  deemed  the 
agent  of  the  insured,  who,  at  the  time  of  applying  for  the  policy, 
was  ignorant  of  the  insurer's  intention  so  to  stipulate.  So,  whei-e 
the  policy  provided  that  any  person  other  than  the  insured  who 
should  procure  the  insurance,  should  be  deemed  the  agent  of  the 
insured  and  not  of  the  company  ;  and  that  a  renewal  certificate 
should  not  be  valid  unless  countersigned  by  the  duly  authorized 

>  Miller  v.  Ins.  Co.,  31  Iowa,  216;  25  Pa.  St.  50;  Ames  v.  Ins.  Co.,  14  N. 
Rathbouev.  Ins.  Co.,  31  Conn.  193;  Y.  523;  Iron  Works  v.  Ins.  Co.,  25 
Hougli  V.  Ins.  Co.,  29  Conn.  10;  Ins.  Conn.  -165;  May  v.  Ins.  Co.,  25  Wis. 
Co.  V.  Homer,  2  Obio  St..  459;  Mc-  291;  Ins.  Co.  v.  Fisb,  71  111.  (520;  Rob- 
Bride  V.  Ins.  Co.,  30  Wis.  562;  Ins.  erts  v.  Ins.  Co.,  41  Wis.  321;  Pechner 
Co.  V.  Eddy.  51  111.  213;  Ins.  Co.  v.  v.  Ins.  Co.,  65  N.  Y.  125;  Alexander 
Lewis,  30  Micb.  41;  Ins.  Co.  v.  Mc-  v.  Ins.  Co.,  2  Hun,  655;  Ins. Co.  v. 
Lanatban,  11  Kas.  533,  Combs  v.  Ins.  Sorrells,  57  Tenn.  352;  Hurgston  v. 
Co.,  43  Mo.  148;  McFarland  v.  Ins.  Ins.  Co.,  42  N.  Y.  46;  Ins.  Co.  v. 
Co.,  6  W.  Va.  437;  Ins.  Co.  v.  Trust  Cbipp,  93  111.  96;  Ins.  Co.  v.  Ward,  90 
Co.,  42  Ga.  587;  Ins.  Co.  v.  .Merritt,  111.  545^  Wbitedv.  Ins.  Co.,  76  N.  Y. 
47  Ala.  387;  Wilhcrell  v.  Ins.  Co.,  49  415;  Carson  v.  Ins.  Co.,  43  N.  J.  L. 
Me.  200;  Ins.  Co.  v.  Spencer,  53  Pa.  300;  S.  C,  39  Am.  R.  584;  Spragnev. 
St.  353;  Ins.  Co.  v.  AVilkinson,  13  Ins.  Co.  69  X.  Y.  138;  Kausal  v.  Ins. 
Wall.  222;  Boetcher  v.  Ins.  Co.,  47  Co.,  31  Minn.  17;  S.  C,  47  Am.  R. 
Iowa,  253;  Clark  v.  Ins.  Co.,40N.  776;  Bank  v.  Ins.  Co.,  32  Hun,  473; 
H.  333;  Masters  v.  Ins.  Co.,  11  Barb.  Woodward  v.  Ins.  Co.,  32  Hun,  365; 
624;  Rowley  v.  Ins.  Co.,  36  N.Y.  550;  Ins.  Co.  v.  Williams,  39  Obio  St.  584; 
Beal  V.  Ins.  Co..  16  Wis.  24;  Peck  v.  S.  C,  48  Am.  R.  474;  Morrison  v. 
Ins.  Co.,  22  Conn.  579;  Kelly  v.  Ins.  Ins.  Co.,  59  Wis.  162. 
Co.,  3  Wis.  268;  Ins.  Co.  v.    Bruner, 


COBPOEATIONS.  1341 

agent  of  the  company.  The  agent  could  not  be  the  agent  of  both 
parties  ;  that  the  company  had  recognized  him  as  its  agent ;  and 
that  he  must  be  deemed  to  be  such.^ 

§  1204.  An  insurance  company  is  estopped  from  denying  pay- 
ment of  premium,  where  there  is  an  acknowledgment  in  the 
policy,  unless  they  can  show  that  the  acknowledgment  was  made 
in  error,  by  fraud  or  duress.^  Officers  and  agents  of  insurance 
companies,  whether  they  be  mutual  or  joint  stock  companies, 
"  may  waive  any  of  the  written  or  printed  conditions  of  the 
poiicy,  and  bind  the  company  by  such  waiver  ;  and  their  repre- 
sentations or  statements  made,  or  promise,  assurance  or  verbal 
consent  given,  to  the  assured  at  the  time  of  issuing  the  policy,  or 
when  acting  within  the  scope  of  their  agency  and  with  knowledge 
of  the  facts  constituting  the  breach,  will,  if  confided  in  and  relied 
upon  by  the  assured,  who  is  himself  innocent  and  makes  no  mis- 
representation or  intentionally  conceals  nothing,  amount  to  such 
waiver  and  estop  the  company  from  taking  advantage  of  the  con- 
dition waived,  such  waiver  may  be  by  express  agreement  in  writ- 
ing or  parol,  or  it  may  be  by  the  acts  and  conduct  of  the  agent, 
and   need  not  be  founded  on  a  new  consideration.^     Thus,  they 

1  ^Yhited  v.  Ins.  Co.,  76  N.  Y.  415.  241;  Ames  v.  Ins.  Co.,  14  N.  Y.  253; 

« Ins.    Co.  V.  Mueller,    77   111.   384;  Mechler  v.  Ins.  Co.,  39  Wis.  104;  Goit 

Ins.  Co.'v.  Wolf,  37  111.  354;   Goit  v.  v.  las.  Co.,  25   Barb.  189;   Liddle  v. 

Ins.   Co.,   25  Barb.    189;    Dalzell    v.  Ins.  Co.,  29  N.  Y.  184;  Frost  v.  Ins. 

Mair,  1  Camp.  532;  Barnum  v.  Childs,  Co.,  5  Denio,  154;  Winans  v.  Ins.  Co., 

1  Sand.  58;  Ins.  Co.  v.  JMcGowa-i,  13  38  Wis.  342;  Ins.  Co.  v.  Stockbower, 

Kas.  300;  Ins.  Co.  v.  Neylaud,  9  Bush,  26  Pa.   St.  199;  Buckbee  v.  Ins.  Co., 

430;  Ins.  Co.  v.  Bocker,  9  Heisk.  606;  18  Barb.  541;  Webster   v.    lus.    Co., 

McCraw   v.  Ins.  Co.,   78   N.   C.  149;  36   Wis.    67;   Bolheu   v.  lus.  Co.,  35 

Ins.    Co.    V.    Kinnier,  28    Gratt.  88;  N.  Y.  131;  Wing  v.  Harvey,  27  E.  L. 

Michael  v.  Ins.  Co.,  16  La.  737;   Goit  &  E.    140;   Haughton  v.   Embark,  4 

V.  Ins.  Co.,  25  Barb.  189.          '  Camp.  88;  Neal  v.  Ewing,  1    Esp.  61; 

3Viele   V.  Ins.    Co.,    26    Iowa,  90;  Peck  v.  Ins.  Co.,  22  Conn.  584;  Fayles 

Viallv.  Ins.  Co.,  19  Barb.  446 ;  County  v.  Ins.  Co.,  49  Mo.  380;  Ins.  Co.  v. 

V.  lus.  Co.,  52  Me.  336;  Rathbouc  v.  Fahrenburgh,  68  111.  483;  Ins.  Co.  v. 

Ins.  Co.,  31  Conn.  193;  Bevin  v.  Ins.  Moulor,  111  IT.  S.  335;  Wright  v.  Ins. 

Co.,  23  Conn.   244;  Ins.    Co.  v.  Ins.  Co.,   36  Wis.  522;   Campbell  v.  Ins. 

Co.,  20  Barb.  4G8;   Leathers  v.   Ins.  Co.,  37  N.  H.  43;    Devine  v.  Ins.  Co., 

Co.,  24  N.    II.  202;     Parker  v.  Ins.  32  Wis.   471;  Marshall  v.    Ins.  Co., 

Co.,  34  Wis.  363;  Ins.  Co.  v.  Spencer,  27  N.  H.  157;  Roberts  v.  Ins.  Co.,  41 

33  Pa.  St.  353;  Sherman  v.  Ins.  Co.,  Wis.    321;   Ins.    Co.  v.  Robinson,  56 

39  Wis.  104;  Beal  v.  Ins.  Co.,  16  Wis.  •  Pa.  St.  268;  Hotchkiss  v.  Ins.  Co.,  5 


1342 


The   Law  of  Estoppel. 


may  waive  the  usual  condition  that  the  premium  must  be  paid 
before  the  policy  shall  be  effectual,  us  well  as  any  other  condition 
in  the  contract,  and  it  is  waived  by  actual  delivery  of  the  policy 
without  requiring  prepayment,'  if  it  is  subsequently  paid  after  a 
loss  occurs,  and  is  retained  and  appropriated  by  the  company,  it 
will  be  a  waiver  of  the  terms  of  the  policy,  and  the  company  can- 
not retain  the  premium  and  refuse  to  pay  the  loss.''  Delivery  of 
a  policy  to  an  agent  authorized  to  deliver  it  to  the  insured  and 
receive  the  premium,  and  his  delivery  of  the  policy  to  the  insured 
and  acceptance  of  a  note  for  tlie  premium  and  procuring  a  dis- 
count of  the  same  for  his  own  account,  without  paying  the 
premium  to  the  principal,  "constitutes  a  valid  insurance,  in  spite 
of  a  provision  in  the  policy  that  such  agent  shall  be  deemed  the 
agent  of  the  insured,  and  that  the  insurer  shall  not  be  liable  until 
he  actually  receives  the  preminm.^  The  receipt  of  the  premium 
on  a  fire  insurance  policy  by  the  local  agent,  binds  the  company, 


Hull,  91;  Sherman  v.  Ins.  Co.,  39  Wis. 
104;  Ins.  Co.  V.  Lyons,  ;)8  Tex.  258; 
Kellips  V.  Ins.  Co.,  28  Wis.  472;  Ins. 
Co.  V.  Wilkinson,  13  Wall.  222;  Mc- 
Bride  V.  Ins.  Co.,  30  Wis.  562; 
Benninghoff  v.  Ins.  Co.,  93  X.  Y. 
495:  Buckley  v.  Garrett,  47  Pa.  204; 
Howitz  V.  Ins.  Co.,  40  Mo.  557; 
Coursiu  V.  Ins.  Co.,  46  Pa.  St.  320; 
Walters  v.  Ins.  Co.,  39  Wis.  489; 
Di<-Ll  V.  Ins.  Co.,  58  Pa.  St.  444. 

1  Ins.  Co.  V.  Slockbower,  26  Pa. 
St.  199;  Berscbe  v.  Ins.  Co.,  31  Mo. 
546;  Ins.  Co.  v.  McCrea,  8  Lea,  541; 
S.  C  .  41  .Vm.  K.  647;  Wilcutts  v.  Ins. 
Co..  8  Ind.  300;  Ins.  Co.  v.  Wolf,  37 
111.  354:  Rathburu  v.  Ins.  Co.,  31 
Conn.  194:  Biickly  v.  Garrett,  47  Pa. 
St.  204:  Keenan  v.  Ins.  Co.,  13  Iowa, 
375;  Miicbell  v.  Ins.  Co.,  51  Pa.  St. 
402:  County  v.  Ins.  Co.,  52  Me.  336; 
Ins.  Co.  V.  Hall,  12  Ml<h.  202:  Ins. 
Co.  V.  Scbollenberger,  44  Pa.  St.  259; 
Tuttlc  V.  Robinson,  33  N.  H.  104; 
Bragdon  v.  Ins.  Co.,  42  Me.  259;  Ins. 
Co.  V.  Ins.  Co.,  20  Barb.  468;  Sheldon 
V.  Ins.  Co.,  26  N.  Y.  460;  Church  v. 
Ins.  Co  ,  18  Barb.  69;  Hallock  v.  Ins. 


Co.,  26  N.  J.  L.  268;  Heaton  v.  Ins. 
Co.,  7  R.  L502;  Post  v.  Ins.  Co.,  43 
Barb.  351;  Boehen  v.  Ins.  Co., 
35  N.  Y.  131;  Goit  v.  Ins.  Co.,  25 
Barb.  189;  Ins.  Co.  v.  Montague,  38 
Mich.  548;  Ins.  Co.  v.  IS'eyland,  0 
Bush,  430;  Tripp  v.  Ins.  Co.,  55  Vt. 
100;  Egan  v.  Ins.  Co.,  10  W.  Va.  583; 
Little  V.  Ins.  Co.,  38  Ohio  St.  110; 
Behlcr  v.  Ins.  Co.,  68  Ind.  347; 
Thompson  v.  Ins.  Co.,  104  U.  S.  252; 
Kelly  V.   Ins.  Co.,  3  Mo.  App.  554. 

^Viele  V.  Ins.  Co.,  26  Iowa,  10; 
Baldwin  v.  Ins.  Co.,  56  Mo.  151; 
Joliffe  V.  Ins.  Co.,  39  Wi.s.  Ill; 
Schoeueman   v.    Ins.,  Neb.  ; 

S.  C,  20  N.  W.  Rep.  284;  Ins.  Co.  v. 
Bowen,  40  Mich.  147;  Bowman  v.  Ins. 
Co.,  59  N.  Y.,  521;  Young  v.  Ins.  Co., 
43  Iowa,  377;  Wood  v.  Ins.  Co.,  :;2 
N.  Y.  619;  Hodsdon  v.  Ins.  Co.,  97 
Mass.  144;  Ins.  Co.  v.  McLanathau. 
11  Kas.  533;  Mershon  v.  Ins.  Co.,  34 
Iowa,  87;  Keim  v.  Ins.  Co.,  42 
Mo.  38. 

»  Kelly  V.  Ins.  Co.,  3  Mo.  App.  554; 
Carson  v.  Ins.  Co. ,  43  N.  J.  L.  300; 
S.  C,  39  Am.  R.  584. 


Corporations.  1343 

tliough  the  agent  convert  the  money  and  a  policy  is  never 
actually  issued.'  So,  where  the  policy  contains  a  clause,  that  the 
company  is  not  liable,  unless  premiums  "  be  actually  paid  to 
the  company,"  it  was  delivered  to  defendant's  agent,  without 
requiring  prepayment,  payment  of  the  premiums  was  demanded 
several  times,  but  not  paid.  Plaintiff's  officer,  at  the  time  of  the 
last  demand,  promised  to  pay  in  a  few  days.  The  policy  was  not 
canceled,  nor  was  plaintiff  notified  that  it  would  be  void,  unless 
payment  was  made.  The  waiver  of  payment  continued  up  to  the 
loss,  and  the  company  was  liable.^  Although  a  life  policy  and 
the  renewal  receipts  may  contain  a  stipulation  or  notice  that 
agents  of  the  company  shall  not  have  authority  to  waive  for- 
feitures, where  premiums  have  not  been  paid  on  or  before  the 
day  designated  for  their  payment ;  yet  the  course  of  business 
between  the  agent,  the  assured,  and  the  companj',  in  giving  effect 
to  payments  made  wdien  overdue,  may  be  such  that  the  company 
will  be  precluded  from  objecting  to  a  payment,  tendered  when 
overdue,  where  no  notice  had  been  given  the  assured,  that  in  the 
future  such  over-payments  would  not  be  received.'  If,  inten- 
tionall}',  by  language  or  by  conduct,  its  policyholders  are  lead  to 
believe  that  prompt  payment  of  their  premiums  is  not  absolutely 
essential,  and  that  no  advantage  will  be  taken  of  such  failure,  it 
is  equivalent  to  an  express  agreement  to  that  effect,  and  is  a 
waiver  of  any  forfeiture  expressed  in  the  policy  therefor,  and 
the  insurer  will  be  estopped  to  insist  on  a  forfeiture  for  delay  in 
payment  of  premiums.*  The  habitual  practice  of  receiving 
premiums  on  a  life  policy  at  other  times  than  on  the  days  fixed 
therein,  operates  as  a  waiver  of  time  as  of  the  essence  of  the  con- 
tract,^ and  precludes  the  company  from  taking  advantage  of  such 
delay  as  a  ground  of  forfeiture,  even  though  the  insured  be  sick 

'  We  V.  Ins.  Co.,  2   Biss.  333;   Ins.  Mo.  App.  253;   Ins.  Co.  v.  Lester.  62 

Co.  V.  Ward,  90  111.  545.  Ga.  247;   Appletou  v.  Ins.  Co.,  59  N. 

2  Washoe,  &c.   Co.   v.    Ins.  Co.,  C6  H.  541;   S.  C,  47  Am.  R  220;  Tripp 

N.  y.  G13.  V.  Ins.  Co.,   55  Vt.  100;  Oakes  v.  Ins. 

■  Ins.   Co.  V.  Doster,  100   U.   S.  30;  Co.,  135  Mass.  248;  Ins.   Co.  v.  Tul- 

Ins.  Co.  V.  TuUidgc,  39  Ohio  St.  240;  lidgc,  39  Ohio  St.  240;  Ins.  Co.  v.  Lan- 

McGraw  v.  Ins.  Co.,  78  N.  C.  149.  sing,  15  Neb.  494. 

*  Ins.  Co.  V.   Ins.  Co.,  8G  Pa.  St.  ^  jj^njey  y_    Life   Assoc,   69   Mo. 

236;  Ins.    Co.  v.    McLean,  31  Gratt.  380. 
517;  Hanley  v.    Life  Association,   4 


1344  The  Law  of  Estoppel. 

at  the  time,'-  and  it  lias  been  held,  that  the  demand  and  receipt  of 
assessments  by  a  life  insurance  company,  after  the  death  of  the 
insured,  with  knowledge  of  his  death,  and  that  the  contract  was 
voidable  on  account  of  misrepresentations  by  tiie  insured,  waives 
the  forfeitures.'  In  a  case  where  the  agents  had  received 
premiums  after  they  had  become  due,  the  conrt  said :  their  acts 
were  voluntary  ;  the  premium  was  received  by  the  agent,  and  for- 
warded to,  and  accepted  by,  the  company.  The  agents  acted 
within  the  scope  of  their  authority;  the  company  ratified  these 
acts.  Tlie  right  of  forfeiture  was  thus  waived,  and  we  cannot 
encourage  the  perpetration  of  a  fraud  by  permitting  the  company 
to  repudiate  the  conduct  of  its  agents.  The  condition  of  for- 
feiture, in  case  the  annual  premium  is  not  paid  on  the  day  named, 
is  for  its  benefit  solely,  and  a  waiver  of  a  strict  compliance  con- 
tinues the  obligation.' 

g  1205.  Mau}'^  policies  of  insurance  contain  provisions  similar 
to  these.  ''  Other  insurance  without  the  consent  of  the  company 
indorsed  thereon,  the  policy  shall  be  void,"  and  other  provisions  of 
like  tenor  as  to  rendering  the  policy  void.  The  true  construction 
of  such  conditions  is,  that  other  insurance  makes  the  policy  not 
void  but  voidable  at  the  election  of  the  company.  The  policy  is 
not  an  absolute  nullity  upon  breach  of  one  of  these  conditions. 
If  the  company  choose  to  waive'their  right  to  avoid  it,  it  becomes 
in  substance  a  new  and  binding  contract  with  the  insured  from 
the  date  of  the  knowledge  of  such  breach  to  the  company  or  its 
duly  authorized  agent,  notice  to  the  agent  is  knowledge  to  the 
company.  So,  where  property  that  is  covered  by  a  policy  is 
sold  and  the  policy  is  assigned  to  the  purchaser  of  the  pioperty 
by  the  consent  of  the  agent  of  the  company  (which  is  the  usual 
mode  in  such  cases),  the  assent  of  the  company  is  given  and  it 
cannot  be  withdrawn  against  the  will  of  the  assignee.  And  the 
same  estoppel  applies  where  the  additional  insurance  exists  at  the 

'  Ins.  Co.  V.  Lester,  50  Gh.  812.  111.  Ill;   Miller  v.  Iiis.  Co.,   27  Iowa, 

-  Association  v.  Beck,  77  Iiul.  203;  203;  Brautou   v.    ln.s.    Co.,   25   Conn. 

S.  C,  40  Am.  R.  295.  542;   Ins.  Co.  v.  Maguire,  51   111.  342; 

^Ins.  Co.  V.  Piobertson.  59  111.  123;  Carson  v.  Ins.   Co.,  43  N.  J.  L.  300; 

Ins.   Co.    V.   Lester,  59  Ga.  812;    Ins.  S.    C,    39    Am.    K.    584;    Wing    v. 

Co.  V.  McCrea,  8  Lea,  541;  S.  C,  41  Harvey,  27  E.  L.  &  E.  140;  Tripp  v. 

Am.  R.  614;  Ins.  Co.  v.  Chestnut,  50  Ins.  Co.,  55  Vt.  100. 


COEPORATIONS. 


1345 


time  of  tlie  issuance  of  the  policy,  or  is  subsequently  taken  at 
the  request  of  the  agent,  or  it  is  reported  to  the  agent  and  he 
fraudulently  fails  to  indorse  it  on  the  policy,  or  there  is  no  written 
acknowledgment  thereof,  or  retains  the  policy  and  returns  it  with 
the  statement  "  that  it  is  all  right"  whenever  such  matters  are 
communicated  to  the  agent,  who  raises  no  objection,  the  notice 
will  be  held  to  be  communicated  to  the  company,  and  no  dissent 
being  shown  it  is  bound,'  and  cannot  thereafter  take  advantage 
of  such  causes  for  avoiding  payment  of  damage  under  the  policy. 
Thus,  when  one  insured  under  such  a  policy,  gave  notice  of  subse- 
quent insurance  to  such  an  agent,  and  delivered  to  him  the  policy' 
for  transmission  to  the  company,  and  the  agent  afterwards 
returned  the  policy,  asserting  that  it  was  all  right,  and  the  assured 
acted  upon  the  assertion  and  treated  the  policy  as  still  in  force,  to 
the  knowledge  of  the  company.  The  company  is  estopped  from 
contesting  the  performance  of  the  condition,  although  no  indorse- 
ment was  made  on  the  policy,  and  no  acknowledgment,  in  writing, 


1  Benninghoff  v.  Ins.  Co.,  93  N.  Y. 
495;  Baer  v.  lus.  Co.,  4  Bush,  242; 
Cobb  V.  lus.  Co.,  11  Kiis.  83;  Bnincl- 
rup  V.  Ins.  Co.,  27  Miuu.  393;  Put- 
uam  V.  Ins.  Co.,  18  Blatchf.  368; 
Biiile  V.  lus.  Co.,  73  Mo.  371;  Combs 
V.  lus.  Co.,  34  N.  J.  E.  403;  Burbauk 
V.  lus.  Co.,  24  N.  H.  550;  Ins.  Co.  v. 
Gray  bill,  74  Pa.  St.  17;  Pierce  v.  Ins. 
Co.,  50  N.  11.  297;  Barnes  v.  lus.  Co., 
45  N.  II.  297;  Stimpson  v.  Ins.  Co.,  47 
Mc.  379;  Wj-man  v.  Prosser,  36  Barb. 
368;  Wyman  v.  Wymau,  26  N.  Y. 
253;  Hale  v.  Ins.  Co.,  32  N.  H.  295; 
Graut  V.  Ins.  Co.,  75  Me.  196;  Red- 
si  rake  V.  Ins.  Co.,  44  N.  J.  L.  294; 
Cunimings  v.  lus.  Co.,  55  N.  H.  457; 
JIartia  v.  Ins.  Co.,  44  N.  J.  L.  273; 
INorlhup  V.  ins.  Co.,  47  Mo.  435;  Peck 
V.  Ins.  Co.,  23  Conn.  575;  Walsh  v. 
In.s.  Co.,  30  Iowa,  133;  Ins.  Co.  v. 
Crane,  16  Md.  260;  Horwitz  v.  lus. 
Co.,  40  Mo.  557;  liiittou  v.  lus.  Co., 
16  U.  C.  Q.  B.  316;  Franklin  v.  Ins. 
Co.,  42  Mo.  456;  Geib  v.  Ins.  Co.,  1 
Vol.  1.— 85 


Dill.  443;  Whitwell  v.  Ins.  Co.,  6 
Lans.  136;  McEwen  v.  Ins.  Co.,  5 
Hill,  101;  Sextouv.  Ins.  Co.,  9  Barb. 
191;  lus.  Co.  V.  Shea,  6  Bush,  174; 
Ins.  Co.  V.  Lyons,  38  Tex.  253;  Car- 
rugi  V.  Ins.  Co.,  40  Ga.  135;  Van 
Vorifes  V.  Ins.  Co.,  8  Bush,  133;  Had- 
ley  V.  Ins.  Co.,  55  K  H.  110;  Schenck 
V.  Ins.  Co.,  24  IS.  J.  447;  Turner  v. 
Ins.  Co.,  16  F.  R.  464;  Pilkington  v. 
Ins.  Co.,  55  Mo.  172;  Goodall  v.  Ins. 
Co.,  25  N.  II.  169;  Carroll  v.  Ins.  Co., 
38  Barb.  402;  Hay  ward  v.  Ins.  Co., 
52  Mo.  181;  lus.  Co.  v.  Robinson,  51 
Pa.  St.  256;  Ins.  Co.  v.  Kelly,  24  Ohio 
St.  345;  Vielc  v.  lus.  Co.,  26  Iowa, 
55;  Pituey  v.  lus.  Co.,  65  N.  Y.  1; 
lus.  Ci).  V.  Maguire,  57  111.  342;  Ames 
V.  Ins.  Co.,  14  N.  Y.  253;  Rothe  v. 
Ins.  Co.,  6  McLean,  324;  Clark  v.  Ins. 
Co.,  40  N.  H.  338;  Hodgkins  v.  Ins. 
Co.,  34  Barb.  213;  Patton  v.  Ins.  Co., 
40  K  H.  375;  Plumb  v.  Ins.  Co.,  18 
N.  Y.  375;  Ins.  Co.  v.  Griflin,  59  Tex, 
509. 


1346  The  Law  of  Estoppel. 

Avas  produced.'  Knowledge  hy  the  company  of  the  existence  of 
a  subsequent  insurance,  followed  by  any  words  or  acts  on  the  part 
of  the  company  by  which  the  insured  is  induced  or  permitted  to 
believe  that  the  contract  of  insurance  is  still  subsisting  and  the 
property  of  the  insured  is  still  protected,  is  a  waiver  of  the  con- 
dition or  an  estoppel  against  an  assertion  that  a  forfeiture  of  the 
policy  has  occurred  because  of  a  faihire  of  the  insured  to  comply 
with  the  condition  to  give  notice  of  such  subsequent  insurance 
and  have  it  indorsed  upon  the  policy  or  acknowledged  iu 
writing.* 

§  1206.  A  forfeiture  for  non-payment  of  premium  is  inserted 
in  the  contract  for  the  benefit  of  the  insurer.  It  may  be  waived 
by  the  company.  Forfeitures  are  not  favored  either  iu  law  or 
equity,  and  a  provision  for  it  will  be  strictly  construed.  Courts 
will  find  a  waiver  upon" slight  evidence,  when  the  equity  of  the 
claim  uukIo  is  under  the  contract  in  favor  of  the  insured.  Courts 
are  always  prompt  to  seize  hold  of  any  circumstances  that  indicate 
an  election  to  waive  a  forfeiture,  or  an  agreement  to  do  so  on 
which  the  party  has  relied  and  acted,  consequently.  "Any  agree- 
ment, declaration,  or  course  of  action,  on  the  part  of  an  insurance 
company,  which  leads  a  party  insured  honestly  to  believe  that  by 
conforming  thereto  a  forfeiture  of  his  policy  will  not  be  incurred, 
followed  by  due  conformity  on  his  part,  will  and  ought  to  estop 
the  company  from  insisting  upon  the  forfeiture,  though  it  might 
be  claimed  under  the  express  letter  of  the  contract.  The  com- 
pany is  thereby  estopped  from  enforcing  the  forfeiture.  The 
re])resentations,  declaration,  or  acts  of  an  agent,  contrary  to  the 
terms  of  the  policy,  of  course,  will  not  be  sufficient,  unless  sanc- 
tioned by  the  company  itself.'"  Thus,  where  an  insurance  com- 
pany refuses  to  receive   from  the  assured   a  premium  on  a  life 

'  Rrdstrake  v.    Ins.  Co.,  44  N.  J.  v.    Beck,  77  Ind.  20\i;  S.  C,  40  Am. 

L.  294.  R.  295;  Crane  v.  Dwyer,  9  Mich.  830; 

"  Martin  v.  Ins.  Co.,  44    N.    J.    L.  White  v.    Port  Huron  Co.,  13  Mich. 

273.  3.j0;  Ins.  Co.  v.    Earl,  33  Mich.  143; 

■'  In.surance  Co.  v.  "Alowry.  96  U.  S.  People   v.  Fire   Dept.,  31  Mich.  458; 

544;  Ins.  Co.  v.  Doster,  106  U.  S.  35;  Baker  v.    Ins.  Co.,  6  Abb.  Pr.  N.  S. 

Shields  V.   Smith,  37  Ark.  47;    Ins.  144:  Lyon  v.  Ins.  Co.,  13  R.   I.  347; 

Co.    V.    Eggieston,    96     U.     S.     572;  S.  C,  43  Am.  R.  32;  S.  C,  20  N.  W. 

Boulon  V.  Ins.  Co.,  25  Conn.  542;  Ins.  li  820;  Moulor  v.  Ins.  Co.,  Ill  U.  S. 

Co.  V.  Lansing,  15  Neb.  494;  Ins.  Co.  83"). 


Corporations.  1347 

policy,  on  the  ground  that  the  policy  has  lapsed  by  reason  of  the 
non-payment  of  such  premium  on  the  day  stipulated  for  its  pay- 
ment, and  the  assured  claims  that  the  company  has  waived  the 
right  to  assert  such  forfeiture,  equity  has  jurisdiction  to  deter- 
mine, on   the  petition  of  the   assured,   the  rights  of  the  parties 
under  such  policy,  and  if  tlie  policy  is  found  to  be  in  force,  by 
reason  of  such  waiver,  to  compel  the  company  to  receive  the  pre- 
miums thereon,  and  issue  renewal  receipts.'     And  where  a  life 
insurance  policy  contained  a  provision  forfeiting  it  in  case  the 
premium   was  not  paid  when  due,  the  insured  was  entitled  to 
share  in  the  profits,  and  the  amount  of  premium  at  any  given 
pay  day  could  be  ascertained  only  by  the  company.     The  insured 
lived  at  a  place  distant  from  the  office  of  the  company,  and  trans- 
acted business  with   it  for  six  years   through  a  local  agent  of  the 
company  located  at  her  place  of  residence,  who,  each  pay  day, 
was  furnished  with  statements  of  the  amount  then  due  from  the 
insured.     This  agent  was,  in   March,  1874,   removed,  and  no  one 
put  in  his  place.     Variations  from  the  terms  of  the  policy  had  by 
mutual  agreement  been  made  on  several  occasions.     Payments 
had  been  received  by  the  company  by  post-office  order  without 
objection.     In   March,  1874,  seven    days   before  the   premium 
became  due,  the  insured  wrote  the  company,  asking  for  a  state- 
ment of  the  amount  of  premium  to  become  due,  and  inclosing  a 
post-office  order  which  she  believed  would   cover  the  amount. 
The  company  did  not  answer   this  letter  until  after  the  day  of 
payment  had  passed.     Tlie  company  was  estopped  from  claiming 
that  the    insured  had    failed   to    pay  the    premium    when    due, 
and  could  not   insist  on  a  forfeiture  of  the  policy  for  such  non- 
payment." 

§  1207.  Any  act  on  part  of  the  insurer  or  his  authorized  rep- 
resentative, which  can  fairly  be  construed  as  an  intention  to 
dispense  with  a  strict  compliance  with  the  terms  of  the  contract, 
or  which  excuses  it  on  the  part  of  the  insured,  will  usually  be 
regarded  as  a  waiver,  and  such  acts  or  conduct  may  be  set  up  to 
estop  the  company  from  alleging  the  thing  waived  as  a  ground  of 

'  Ins.   Co.    V.  Pottker,    33  Ohio  St.      R.  200;  Day  v.    Ins.    Co.,   45   Conn. 
459;  S.  C,  31  Am.   11.  555;  Meyer  v.      480;  S.  C,  29  Am.  R.  693. 
Ins.  Co.,  73  N.  Y.  516;  S.  C,  29  Am.         •■'  Meyer   v.  Ins.  Co.,  73  N.  Y.  516; 

S.  C,  29  Am.  11.  200. 


1348  The  Law  of  Estoppel. 

defense.  Conduct  on  the  part  of  the  insurers,  which  implicitly 
i-ecognizes  the  validity  of  a  policy,  is  a  waiver  of  the  breach,  if 
known.' 

§  1208.  A  waiver  of  preliminary  proofs  of  loss  may  be  infer- 
red from  the  acts  and  conduct  of  the  insurer  intjonsistent  with  an 
intention  to  insist  upon  the  strict  performance  of  the  condition, 
evincing  a  recognition  of  liability,  or  a  denial  of  obligation 
exclusively  fur  other  reasons.  Estoppel  as  an  element  in  connec- 
tion with  a  waiver  of  preliminary  proofs  of  loss  means  where  the 
insurer,  knowing  that  the  proofs  have  not  been  furnished  within 
the  time,  so  conducts  itself  thereafter  in  relation  to  the  contract 
as  leads  the  insured  to  believe  that  it  still  recognizes  the  policy 
to  be  in  force  and  binding  upon  it.  Thus,  when  an  insurance 
compan}'  after  notice  of  a  tire,  by  letter  from  the  insured,  five  or 
six  days  after  its  occurrence,  sent  an  agent  to  investigate  the  loss, 
and  such  agent,  duly  authorized,  offered  to  compromise  it,  the 
company  was  held  estopped  from  setting  up  that  the  notice  had 
not  been  sent  foi'thwith,  as  required  by  the  policy.''  So,  a  policy 
of  insurance  provided  that  proofs  of  loss  should  be  sent  to  the 
office  of  the  company  within  thirty  days  after  a  fire,  and  another 
clause  of  the  same  policy  provided  that  no  condition  of  the  policy 
sliould  be  waived  except  by  a  general  officer  of  the  company  by 
writing  indorsed  on  the  policy.  After  the  property  insured  had 
been  destroyed  by  lire,  the  secretary  of  the  company  notified  the 
insured  that  the  company  would  replace  the  property  destroyed, 
and  unwarrantably  interfered  with  the  agent  of  the  insured  in 
making  out  the  proofs  of  loss,  directing  him  not  to  complete 
them  ;  the  proofs  were  consequently  not  sent  in  within  thirty 
days  ;  the  company  did  not  replace  the  property.  These  facts 
made  out  evidence  of  a  waiver  of  the  condition  requiring  proofs 

'  Ills.  Co.  V.  Sr)rsby,  GO  Miss.    310;  Denio,    155;  Hale  v.    Ins.  Co.,  32  K 

IJliike  V.  Ins.  Co.,  12   Gniy,  265;  Ins.  H.  295;  Keenan  v.  Ins.  Co.,  13  Iowa, 

Co.     V.    Tliioop.    22  Mich.  146;  Ins.  375;  AVitheiall  v.    Ins.    Co.,   49  Me. 

Co.    V.  Olmsted,  21  Mich.    286;  Row-  200;  North  Branch   Co.  v.  Insurance 

ley   V.   Ins    Co..  36   N.  Y.  550;  Bank  Co.,  52  Me.  340;  Ins.  Co.  v.  Stone,  49 

V.  Ins.  Co.,  31  Conn.  526;  Ins.   Co.  v.  Tex.  4;  Ins.  Co.  v.   Lacroix,  45  Tex. 

Curraii,   45   Mo.  142;  Heaton  v.  Ins.  138. 

Co.,  7  K.  I.  502;  Nichols  v.  Ins.  Co.,  «  Ins.    Co.   v.   Schefler,   42  Pa.  St. 

1    Allen.    63;    Frost,  v.  Ins.    Co.,  5  188. 


CORPOEATIONS.  1349 

of  loss  witliin  thirty  days/  The  refusal  to  pay  a  loss  on  tlie 
ground  of  failure  of  title  is  evidence  of  a  waiver,^  and  electing  to 
rebuild,  replace,  or  repair,  is  a  M-aiver  of  the  right  to  arbitration/ 
In  a  recent  case  the  court  said  :  "  There  was  a  complete  waiver  of 
any  objection  to  the  proofs  of  loss,  and  indeed  a  complete  waiver 
of  the  proof  of  loss  by  the  insurance  companies.  Shortly  after 
notice  of  loss,  the  insurance  companies  sent  their  adjusters  down 
to  Terry,  clothed  with  full  authority  to  adjust  and  pay  the  loss. 
These  adjusters  not  only  made  inquiry,  but  under  the  authority 
of  the  stipulations  in  the  policies  themselves,  regarded  by  them 
at  that  time  as  being  binding  contracts,  actually  put  the  assured 
through  a  close  private  examination  before  the  magistrate,  and 
after  the  examination  offered  to  pay  the  insured  $10,000  as  a  full 
compensation  for  his  loss."* 

§  1209.  Where  the  preliminary  proofs  of  loss  by  fire  are 
served  on,  and  received  by  the  insurance  company  without  objec- 
tion, and  the  company  base  their  refusal  to  pay  upon  the  ground 
that  the  risk  had  been  increased,  it  is  too  late  for  the  company  to 
object  on  the  trial  that  the  preliminary  proofs  were  defective  and 
insufiicient.  Good  faith  on  the  part  of  the  insurance  companies 
requires  that,  if  the}'  mean  to  insist  upon  a  mere  formal  defect  in 
the  preliminary  proofs,  they  should  apprise  the  assured  that  they 
consider  them  defective,  specifying  the  pai'ticulars,  or  put  their 
refusal  upon  the  grounds  of  defects  in  the  proofs,  so  as  to  give 
the  insured  an  opportunity  to  supply  the  defect  before  it  be  too 
late;  and,  if  they  neglect  to  do  so,  their  silence  should  be  held  a 
waiver  of  such  defect  in  the  preliminary  proofs,  so  that  the 
same  shall  be  considered  as  having  been  duly  made  according  to 
the  conditions  of  the  policy.* 

»  Ins.  Co.  v.  Todd,  83  Pa.    St.  272.  ^  Insurance  Go's.  v.  Sorsby,  60  Miss. 

Mns.    Co.  V.   Slauffer,   33  Pa.    St.  310;  Owen  v.  Ins.  Co.,  57  Barb.  518; 

397;    Ins.    Co.    v.    Davis,   98  Pa.  St.  Ins.  Co.  v.  Chestnut,  50  111.   113;  Ins. 

280;  Ins.  Co.  v.  Flynn,  98  Pa.  St.  637;  Co.  v.  McDowell,  50  III.  130;  Ins.  Co. 

Ins.  Co.  V.  Scholleuberg,    44   Pa.  St.  v.  Archdean,  83   111.   336;  Ins.  Co.  v. 

259;  Ins.  Co.  V.  Moycr,  97Pa.  St.  441;  Meyer,  93   111.    371 ;  McBride  v.   Ins. 

Ins.  Co.  V.  Dougherty,  102  Pa.  St.  568.  Co.,  30  Wis.  562;  Ins.  Co.    v.    Kittle, 

»  Wynkoop  v.    Ins.   Co.,  91  N.  Y.  39  Mich.   51;    Pokes  v.  Ins.  Co.,  51 

478;  Merrill  v.  Ins.  Co.,  33  N.Y.  429;  Md.  512. 

Beales  v.  Ins.    Co.,    36   N.    Y.    523;  *  Ins.  Co  v.  Tyler,  16   Wend.   385; 

Heilmau  v.  Ins.  Co.,  75  N.  Y.  7.  Ins.  Co.  v.  Moyer.  97  Pa.  St.  441 ;  Ins. 


1350 


The  Law  of  Estoppel. 


§  1210.  Requirements  tliat  are  for  the  benefit  of  the  company 
may  be  waived  or  modified  by  the  compan}';  and  it  is  well  set- 
tled, botli  upon  principle  and  authority,  that  if  a  part}'  insured 
calls  upon  the  insurer  to  pay  his  loss,  and  the  latter  makes  no 
specific  objection  to  the  form  or  sufficiency  of  such  proofs  of  that 
loss  as  are  offered,  or,  to  the  entire  neglect  to  furnish  such  proofs, 
ill  season  for  the  claimant  to  repair  his  error,  but  declines  to  pay 
the  claim  upon  other  and  different  grounds,  specifying  them,  it 
will  be  estopped  from  thereafter  setting  up  defects  in  the  proof 
of  loss  as  a  defense  to  the  claim,  being  presumed  to  have  waived 
them.' 


Co.  V.  Schieffler,  43  Pa.  St.  188;  Mc- 
Masters  v.  Ins.  Co.,  25  Wend.  379; 
Myerv.  Ins.  Co.  75  N.  Y.  516;  Ben- 
nett V.  Ins.  Co.,  17  A.  L.  J.  366;  Ins. 
Co.  V.  Lawrence,  10  Peters,  507;  Car- 
roll V.  Ins.  Co.,, 40  Barb.  292;  Rogers 
V.  Ins.  Co.,  6  Paige,  583;  Ins.  Co.  v. 
Ins.  Co.,  20  Barb.  469;  Lewis  v.  Ins. 
Co.,  52  Me.  492;  Post  v.  Ins.  Co.,  43 
Barb.  351;  Miller  v.  Ins.  Co.,  2  E.  D. 
Smith,  268;  Beebe  v.  Ins.  Co.,  25 
Conn.  51;  Savage  v.  Ins.  Co.,  4  Bosw. 
1;  Blake  v.  Ins.  Co.,  12  Gray,  265; 
Noyes  v.  Ins.  Co.,  30  Vt.  659;  Trans- 
portation Co.  V.  Ins.  Co.,  6  Blatch. 
241;  Ins.  Co.  v.  Stern,  5  Bush,  62; 
Francis V.  Ins.  Co.,  6  Cow.  404;  Brink 
V.  Ins.  Co.,  16  A.  L.  J.  613;  Goodwin 
V.  Ins.  Co.,  73  N.  Y.  480;  O'Neill,  v. 
Ins.  Co.,  3  N.  Y.  122;  Sheldon  v.  Ins. 
Co.,  25  Conn.  307;  Peck  v.  Ins.  Co., 
22  Conn.  575;  Francis  v.  Ins.  Co.,  25 
N.  J.  L.  78;  Brown  v.  Ins.  Co.,  31 
How.  Pr.  508;  Schenck  v.  Ins.  Co., 
34  N.  J.  L.  447;  Vos  v.  Robinson,  9 
Johns.  192;  Ins.  Co.  v.  Coates,  14 
Md.  285;  McComas  v.  In.s.  Co.,  56 
Mo.  573;  Ins.  Co.  v.  Ins.  Co.,  97  Pa. 
St.  15;  Ins.  Co.  v.  Stauffer,  33  Pa.  St. 
397;  Ins.  Co.  v.  Todd,  83  Pa.  St. 
372. 

'  Whittle  V.  Ins.  Co.,  3  Hughes, 
421;  Mosley  v.  Ins.  Co.,  55  Vt.  142; 
Young    V.    Ins.    Co.,  45  Iowa,   377; 


Noyes  v.  Ins.  Co.,  30  Vt.  659;  Ins. 
Co.  V.  Meyer,  39  N.  .J.  L.  482;  Ins. 
C»  V.  Meckes,  12  Rep.  314;  Ins.  Co. 
V.  Kranich,  36  Mich.  289;  Eagan  v. 
Ins.  Co.,  10  W.  Va.  583;  Ins.  Co.  v. 
Kinnier,  28  Gratt.  88;  Palmer  v.  Ins. 
Co.,  44  Wis.  20;  Ins.  Co  v.  Ward,  90 
111.  550;  Goodwin  v.  Ins.  Co.,  73  N. 
Y.  480;  Ins.  Co.  v.  Stadden,  26  111. 
365;  Prentice  v.  Ins.  Co.,  77  N.  Y. 
483;  Ins.  Co.  v.  Hope,  58  III.  75; 
Brink  v.  Ins.  Co.,  80  N.  Y.  108: 
Mason  v.  Ins.  Co.,  10  W.  Va.  572; 
Ins.  Co.  V.  Dunmore,  75  111.  14;  Ins. 
Co.  V.  Tyler,  16  Wend.  385;  Ins.  Co. 
V.  Schneller,  60  111.  495:  McMaster  v. 
Ins.  Co.,  25  Wend.  379;  R.  R.  v.  Ins. 
Co.,  105  Mass.  570;  Underbill  v.  Ins. 
Co.,  6  Cush.  440;  Priest  v.  Ins.  Co., 
3  Allen,  602;  Kernochan  v.  Ins.  Co., 
17  N.  Y.  428;  Blake  V.  Ins.  Co.,  12 
Gray,  265;  Child  v.  Ins.  Co.,3Sandr. 
42;  Butlerworth  v.  Ins.  Co.,  132  iMa.';s. 
489;  Graham  v.  Ins.  Co.,  21  Alb.  L. 
J.  98;  Ins.  Co.  v.  Sorsby,  60  Mi.ss. 
303;  Ins.  Co.  v.  Stauffer,  33  Pa.  St. 
397;  Castuer  v.  Ins.  Co.,  50  Mich. 
273;  Ins.  Co.  v.  Sennet t,  41  Pa.  St. 
161;  Ins.  Co.  v.  Davidson.  67  Ga.  11; 
Coursin  v.  Ins.  Co.,  46  Pa.  St.  323; 
Baile  v.  Ins.  Co.,  73  Mo.  371;  Buck- 
ley V.  Garrett,  47  Pa.  St.  204;  Cannon 
V.  Ins.  Co.,  53  Wis.  585;  Ins.  Co.  v. 
Taylor,  73  Pa.  St.  343;  Walsh  v.  Ins. 


CORPOKATIONS.  1351 

Generally,  a  refusal  by  the  company  to  pay,  or  a  denial  of 
its  liability  before  any  preliminary  proofs  are  made,  as  required 
on  the  face  of  a  policy,  whereby  the  assured  is  induced  not  to 
comply  with  the  conditions  of  the  policy  in  that  respect,  is  in  law 
a  waiver  of  the  conditions  of  the  policy  requiring  such  proofs  to 
be  made.  Such  a  denial  of  responsibility  is  the  same  as  a  notice 
to  the  assured  that  payment  will  not  be  made  in  any  event,  uj)on 
grounds  other  than  a  failure  to  comply  by  the  assured  with  the 
conditions  as  to  the  proof  of  loss  ;  and  it  thus  renders  them 
wholly  unnecessary,  as  the  law  does  not  require  a  person  to  per- 
form an  act  which  the  act  of  the  other  party  has  rendered  unnec- 
essary, or  a  mere  idle  formality.' 

§•  1211.  "  If  the  insurers  decline  to  pay  without  giving  any 
reason  upon  which  to  rest  their  refusal,  such  a  refusal,  by  neces- 
sary implication,  gives  the  assured  to  understand  that  the  produc- 
tion of  preliminary  proof  will  be  useless, — an  idle  ceremony, 
which  the  law  will  not  require  him  to  perform.  So,  if  the  refusal 
to  pay  is  upon  the  ground  that  the  property  lost  was  not  included 
in  the  risk,  or  that  the  assured  had  forfeited  his  right  to  recover 
by  fraud.'" 

"  The  doctrine  that  an   insurance  company,  by  putting  its 

Co.,   54   Vt.    351;  Ins.  Co.  v.  Todd,  35  La.  Ann.  98;  Ins.  Co.  v.  Staats,  103 

83  Pa.  St.  27:};  Couch  v.   Ins.  Co.,  25  Pa.  St.  529;  Wagon  Co.   v.   Ins.  Co., 

Hun,  469;  lus.  Co.  v.  Cochran,  7  Rep.  20  F.  R.  332;  Edwards  v.  Ins.  Co.,  20 

758;  Ins.  Co.  v.  Jacobs,  56   Tex.  366;  F.  R.  661;  Maiston  v.  Ins.  Co.,  59  K 

Harriman  v.  Ins.  Co. ,49  Wis.  71;  Ins.  H.  92;  Lowry  v.    Ins.   Co.,  32  Hun, 

Co.  V.  Parisot,  35  Ohio  St.  35;  Vos  v.  329. 

Robinson,  9   Johns.    192;    Ins.  Co.  v.  '  Norwich,  &c.  Co.  v.  Ins.  Co.,  34 

Balto.  W.  Co.,  16  Am.  L.  Reg.  N.  S.  Conn.  561;    Ins.   Co.  v.  Davidson,  67 

162;  Heath  V.  Ins.  Co.,  1   Cush.    257;  Ga.  11;   Taylor  v.   Ins.  Co.,   9  How. 

Norwich,    &c.    Co.    v.    Ins.    Co.,    6  390;  Post  v.   Ins.  Co.,  43  Barb.  351; 

Blatchf.    241;    Clark  v.  Ins.    Co.,    6  Dean  v.  Ins.  Co.,  4   T.  &  C.  (N.  Y.) 

Cush.    342;  Miller  v.    Ins.  Co.,  2  E.  497;  Sheppard  v.  Ins.  Co.,  2  W.  Va. 

D.  Smith,  268;  Bennett   v.   Ins.    Co.,  381;   Ins.   Co.  v.  Reynolds,  32  Gratt. 

17  Alb.  L.  J.  363  ;  Ripley  v.  Ins.  Co.,  613;  Ins.  Co.  v.  Sparks,  62  Ga.  187. 
30  N.  Y.  136;  Patterson   v.    Ins.  Co.,  Mns.    Co.    v.    Shryer,  85  Ind.    363 

64  Me.  500;  Gansv.  Ins.  Co.,  43  Wis.  Little  v.    Ins.    Co.,    123   Mass.    380; 

108;  Rokes  v.  Ins.    Co.,  51  Md.  512;  Graves  v.  Ins.  Co.,  12  Allen,  391;  Ins. 

Levy  V.  Ins.   Co.,    10  W.    Ya.    560;  Co.  v.   Kittle,  39  Mich.   51;   Ins.  Co. 

Boole  v.  Ins.  Co.,  6  Cush.  440;  Mosely  v.  Taylor,  73  Pa.  St.  342;   Ins.  Co.  v. 

V.    Ins.  Co.,  55  Vt.    142;   McPike  v.  Meckes,  12  Reporter,  314;  Ins.  Co.  v. 

Ins.  Co.,  61  Miss.  37;  Daul  v.  Ins.  Co.,  Moyer,  97  Pa.  St.  441. 


1352  The  Law  of  Estoppel. 

refusiil  to  pay  tlic  loss  upon  a  definite  ground,  different  from  a 
want  of  preliminary  proofs,  or  of  defect  in  their  form  or  sub- 
stance, waives  the  right  to  insist  upon  the  failure  to  make  such 
proof  as  a  defense  to  an  action  on  the  policy,  is  in  harmony  with 
tlie  elcmentar}'  principle  that  a  party,  who  places  his  refusal  upon 
one  ground,  cannot,  after  action  brought,  change  it  to  another 
and  different  one."'  Where  the  insurers  by  holding  out  to  the 
assured  hopes  of  an  equitable  settlement,  have  themselves  caused 
the  delay,  they  cannot  take  advantage  of  the  stipulation  in  the 
policy  that  a  suit  shall  be  brought  within  twelve  months  after 
a  loss  and  damage  or  the  claim  shall  be  barred.^ 

§  1212.  So  where  a  policy  requires  notice  to  be  given  on  all 
prior  insurance,  and  that  it  be  indorsed  on  the  policy,  and  where 
the  assured  gave  written  notice  of  prior  existing  insurance,  which 
the  company  failed  to  indorse  on  the  policy,  the  company  is 
estopped  from  setting  up  such  prior  insurance  as  a  defense  to  an 
action  on  the  policy.'  The  success  of  such  a  defense  would 
operate  as  a  fraud  upon  the  insured.  They  ought  to  be,  and  are 
estopped  from  making  it.  Wiiilst  the  law  affords  ample  protec- 
tion to  these  companies,  as  well  as  to  individuals,  against  fraud, 
misrepresentations  and  breaches  of  warranty,  it  will  not  and 
ought  not  to  help  them  to  perpetrate  frauds  upon  those  witli 
whom  they  make  contracts,  in  which  good  faith  on  both  sides,  as 
well  in  their  continuance,  as  origin,  has  always  been  regarded  as 
a  ruling  consideration.  An  adjustment  with  full  knowledge  of 
facts  is  a  waiver  of  a  right  to  insist  upon  a  forfeiture  for  obtain- 
ing additional  insurance  without  consent  of  the  company.''  Where 
the  local  agent  is  informed  of  the  removal  of  the  goods  that  have 
been  insured  long  before  any  loss  occurs,  and  the  companj-  does 
not  elect  to  have  the  policy  canceled,  and  give  the  insured  an 
opportunity  of  again  insuring,  it  will  be  liable  for  the  loss.     It 

'  Ins.  Co.   V.  Shryer,  85  lud.  362  ;  Co.  v.  Myer,  93  111.  271;   lus.  Co.  v. 

Haiina  v.  Phelps,  7  Iiid.  21;   Turner  Cary,  83  111.  453;  Ins.  Co.  v.  Fish,  71 

V.    PaiTy,    27    Ind.   163 ;   Bartlelt   v.  111.  620. 

Adams.  43  Ind.  447;  Blair  y.  Hamil-  a  poote  v.  Ins.  Co.,  61  K  Y.  571. 

ton,  48  Ind.  32;   Enibden  v.  Augusta,  *  Levy  v.  Ins.  Co.,  10   W.  Va.  560; 

12   :\Iass.    307;   Geirish   v.   Xonis,    9  :\rasou  v.    Ins.   Co.,  10  W.  Va.  572; 

Cush.  167.  Eagan  v.  Ins.  Co.,  10  W.  Va.  583. 

«  Grant  v.  Ins.  Co.,  5  Ind.  23;   Ins. 


CORPOEATIONS.  1353 

would  be  inequitable  to  permit  the  company,  with  knowledge 
of  that  which  it  insists  effected  a  forfeiture,  to  retain  the  balance 
of  the  unearned  premium.' 

§  1213,  Acts  or  knowledge  of  the  officers  of  the  company, 
secretary,  president,  &c,,'  are  binding  on  the  company.''  Thus 
knowledge,  by  the  president  of  an  insurance  company,  who  has 
exercised  the  power  of  making  and  renewing  contracts  of  insur- 
ance, that  the  insured  was  making  additions  to  the  insured  build- 
ings with  a  verbal  permission  to  do  so,  estops  the  company  from 
defending  an  action  brought  upon  the  policy  upon  the  ground 
that,  by  reason  of  such  additions,  there  had  been  an  increase  of 
risk.^ 

So  where  the  directors  of  an  insurance  company  are  empow- 
ered to  determine  the  sum  to  be  insured  on  any  building,  pro- 
vided it  does  not  exceed  three-fourths  its  value,  and  by  the 
powers  vested  in  them  have  the  right  to  determine  the  value  of 
the  building,  when  the  company  is  sued  for  a  loss  under  a 
policy,  it  is  estopped  from  setting  up  that  the  sum  insured  by 
the  directors  exceeded  the  prescribed  limit  of  value/  A  state- 
ment in  the  instructions  issued  to  agents  that  distilleries  are 
not  insurable  does  not  estop  the  company  from  making  a  valid 
contract  of  insurance  upon  a  distillery.^  An  insurance  company 
is  estopped  from  claiming  that  the  right  of  a  policy  holder  is 
already  suspended  if  it  recognizes  its  continued  existence  by 
notifying  him  that  "  it  is  now  liable  to  immediate  suspension 
unless  he  gives  prompt  attention  to  the  notice.'.  If  an  insurance 
companies  insures  vacant  premises,  knowing  or  not  caring  that 
they  are  vacant,  but  provides  in  the  policy  that  the  insurance 
shall  be  void  if  the  premises  become  vacant,  &c.,  it  must  be  pre- 
sumed that  this  provision  was  waived,  and  the  company  is  estop- 

'  Ins.  Co.  V.  Gary,   83  111.  453;  Ins.  "  Hoxie  v.    Ins.    Co.,    6  R.I.  517; 

Co.  V.  Susdorf,  43  Md.  507;  Walters  Simpson  v.  Ins.  Co.,  57  K.  H.  ICO. 

V.  Ins.  Co.,  39  Wis.  489.  ^  Ins.  Co.  v.  Shefler,  42  Pa.  St.  188; 

^  Ins.  Co.  V.  Gargett,  42  Mich.  289;  Ins.  Co.  v.  Schollenberger,  44  Pa.  St. 

Olmslead  v.  Ins.  Co.,  50  Mich.  200.  259;  Bennett  v.  Ins.  Co.,  17  Alb.  L.  J. 

3  Martin  V.  Ins.    Co.,  44  N.   J.   L.  366;  Ins.  Co.  v.  Sortwell,8  Allen,  217. 

273.  6  oimstead  v.   Ins.   Co.,   50  Mich. 

200. 


1354  The  Law  of  Estoppel. 

ped  from  taking  advantage  of  it.>     Or  if  the  agent  is  informed  of 
a  vacancy  and  replies  all  right." 

§  1214.  If  a  company  see  fit  to  renew  a  policy  after  it  has  full 
knowledge  of  the  risk,  any  misrepresentation  contained  in  the 
original  application  must  be  deemed  waived ;  and  the  company 
are  bound  by  the  policy.*  Where  an  insurance  company,  with 
knowledge  of  the  facts,  accepts  from  the  assured  a  premium  for  a 
renewal,  and  renews  the  insurance,  it  will  be  deemed  to  have 
declared  the  contract  of  insurance  valid,  and  to  have  waived  a 
forfeiture,^  or  the  doing  of  any  other  act  by  the  agent  recognizing 
the  policy  as  still  in  force  and  binding,*  if  any  has  occurred,  by 
reason  of  the  omission  of  the  assured  to  give  notice  of  other 
insurance  and  have  it  indorsed  on  the  policy.  Under  such  cir- 
cumstances the  company  is  precluded  from  asserting  either  that 
the  renewal  was  inoperative,  or  that  the  policy  became  void, 
immediately  after  it  was  renewed,  by  reason  of  circumstances  of 
which  it  was  fully  cognizant  at  the  time  of  renewal,  on  the 
principle  of  estoppel  in  pais.  It  makes  no  difference  that  the 
policy  provides  that  none  of  its  conditions  "  can  be  waived 
except  in  writing  by  the  secretary."  Tiiis  provision  may  be 
rescinded  or  modified  by  a  valid  agreement  even  in  parol,  and  the 
renewal  of  the  policy  has  this  effect.*     Thus,  where  an  insurance 

1  Short  V.    Ins.  Co.,  90  N.  Y.  16;  Baker  v.  Ins.  Co.,  4  Rob.  K  Y.  333; 

S.    C,  43  Am.   II.  138;  Wakefield  v.  Sherman  v.    lus.  Co.,  46  N.  Y.  526; 

Ins.  Co.,  50  Wis.  532;   Palmer  v.  Ins.'  Goodall  v.    In.s.    Co.,    35  N.  H.  328; 

Co.,  44  Wis.  201:  Castner  v.  Ins.  Co.,  Hough  v.  Ins.  Co.,  29  Conn.  10;  Wood 

46  Mich.  110;  Ins.   Co.  v.  Wells,  89  v.  Ins.  Co.,  32  N.  Y.  619;  Ayres  v. 

111.  82;  Alkau  v.   Ins.    Co.,  53  Wis.  Ins.  Co.,  17  Iowa,  176;  Boutou  v.  Ins. 

136.  Co.,  25   Conn.    522;   Whited   v.   Ins. 

«  Witheroll  v.  Ins.  Co.,  49  Me.  200;  Co.,    76  N.  Y.  138;  Trustees  v.  Ins. 

Robinson  v.  Ins.  Co.,  18  Hun,  395.  Co.,  19  N.  Y.  305;  Ins.  Co.  v.  Lyons, 

3  Wing  V.   Harvey,  27  E.  L.  &  E.  38  Tex.  253;   Winans  v.  Ins.  Co.,  38 

140;Berwick,ctc.  Co.  v.Ins.  Co.,52Me.  Wis.  342;   Sheldon  v.  Ins.  Co.,  26  N. 

336;  Ins.  Co.  v.  Kinnier,  28  Gratt.  88.  Y.  460;   Fisk  v.    Ins.    Co.,  44  N.  Y. 

*  Keeler  V.  Ins.  Co.,  16  Wis.  573.  538;   Myers  v.    Ins.    Co.,  27   Pa.  St. 

6  Carroll  v.  Ins.  Co.,  38  Barb.  402;  268;  Ho'tchkiss  v.  Ins.  Co.,  5  Hun,  91; 

Ins.    Co.    V.    Slockbowcr,  26  Pa.  St.  Luding  v.    Ins.    Co.,   48  N.  Y.    384; 

199;   Buckley  v.  Garrett,  47  Pa.  St.  Bodine  v.    Ins.    Co.,    51   N.  Y.    117; 

204;  Ins.  Co.  v.  Ins.  Co.,  52  Me.  336;  Sherman  v.    Ins.  Co.,  46  N.  Y.  526; 

Rowley  v.    Ins,    Co.,   36   N.  Y.  550;  Boohen  v.    Ins.    Co..   35  N.  Y.   131; 

Ilehn   V.    \x\^.    Co..    61   Pa.    St.    107;  P.-chner   v.    Ins.    Co..  65   N.  Y.   195- 


Corporations. 


1355 


company  agree  to  extend  the  time  of  payment  of  a  premium  by 
parol  or  otherwise  it  is  estopped  by  such  extension  of  time  from 
claiming  a  forfeiture,"  Where  the  insurers  of  property  have,  by 
their  acts  and  conduct,  acknowledged  the  interest  in  the  premises 
of  one  who  has  paid  to  them  a  premium  for  a  renewal  of  the 
insurance  for  another  term,  they  cannot  deny  his  interest  in  a 
suit  to  recover  the  insurance  money  for  a  loss  occurring  after 
such  renewal/  An  insurance  company  is  estopped  from  using 
the  defects  in  a  survey  which  has  been  prepared  by  the  company 
or  its  duly  authorized  agent,  as  a  means  of  escaping  from  the  pay- 
ment of  the  loss.*  Though  there  can  be  no  estoppel  under  these 
circumstances,  unless  the  insured  acted  in  good  faith  and  was 
misled  by  the  agent/  An  insurance  company  is  estopped  from 
taking  advantage  of  the  acts  of  its  agents  within  the  scope  of 
their  authority. 

§  1215.  If  a  policy  of  insurance  is  issued  by  an  insurance 
company,  upon  a  personal  inspection  and  survey  by  its  agent, 
without  any  written  application  on  the  part  of  the  insured,  or 
any  fraud,  misrepresentation,  or  any  attempt  to  deceive  the  agent, 
or  to  prevent  his  acquiring  a  full  knowledge  of  the  nature  and 
extent  of  the  risk,  the  company  is  estopped  from  taking  advan- 


Van  Schaick  v.  Ins.  Co.,  68  N.  Y 
434;  Bidwell  v.  Ins.  Co.,  24  N.  Y.  302 
Broadhead  v.  Ins.  Co.,  23  Hun,  397 

'  Horner  v.  Ins.  Co.,  67  N.  Y.  478 
Young  V.  Hunter,  6  N.  Y.  203 
Underwood  v.  Ins.  Co.,  57  N.  Y.  500 
Leslie  v.  Ins.  Co.,  2  Hun,  616;  Slier 
man  v.  Ins.  Co.,  46  N.  Y.  526 
Hasbrouck  v.  Taffen,  15  Johns.  200 
Keating  v.  Price,  1  Johns.  Cas.  22 
Evans  v.  Thompson,  5  East,  189 
Boutwell  V.  O'Keefe,  32  Barb.  434 
Bodine  v.  Ins.  Co.,  51  N.  Y.  117; 
Howell  V.  Ins.  Co.,  44  N.  Y.  276. 

■'  Ins.  Co.  V.  Wetmore,  32  111.  221. 

a  Plumb  V.  Ins.  Co.,  18  N.  Y.  392; 
Ins.  Co.  V.  Brunner,  23  Pa.  St.  60;  Iron 
Works  V.  Ins.  Co.,  25  Conn.  465;  Van 
Schaick  v.  Ins.  Co.,  68  K  Y.  434; 
Harris  v.  Ins.  Co.,  18  Ohio,  167;  Beebe 


V.  Ins.  Co.,  25  Conn.  51;  Campbell  v. 
Ins.  Co.,  37  N.  H.  41;  Ins.  Co.  v. 
Nelson,  75  111.  548;  Mechler  v.  Ins. 
Co.,  38  Wis.  665;  Bodine  v.  Ins.  Co., 
,51  N.  Y.  117;  Ins.  Co.  v.  Pierce,  75 
111.  426;  Ins.  Co.  v.  Olmstead,  21 
Midi.  246;  Masters  v.  Ins.  Co.,  11 
Barb.  624;  Marshall  v.  Ins.  Co.,  27  N. 
H.  157;  Ins.  Co.  v.  McCall,  9  W.  Va. 
514;  Ay  res  v.  Ins.  Co.,  21  Iowa,  285; 
Clark  V.  Ins.  Co.,  46  N.  Y.  333:  Ins. 
Co.  V.  Wright,  22  111.  462;  Ins.  Co.  v. 
Stewart,  23  Pa.  St.  45;  Peck  v.  Ins. 
Co.,  22  Conn.  584;  Rowley  v.  Ins.  Co., 
40  IS.  Y.  557;  Hough  v.  Ins.  Co.,  29 
Conn.  10;  Ames  v.  Ins.  Co.,  14  N.  Y. 
253;  Coombs  v.  Ins.  Co.,  43  Mo.  148; 
Bank  v.  Ins.  Co.,  31  Conn.  520;  Bid- 
well  v.  Ins.  Co.,  24  N.  Y.  302. 
*  Smith  V.  Ins.  Co.,  24  Pa.  St.  226. 


18:)6 


The  Law  of  Estoppel. 


tage  of  any  inistake  oi'  omission  of  such  agent  in  that  respect.' 
Where  an  insurance  agent  neglects  to  note  on  a  policy  other 
insurance  wliich  lie  takes,  the  company  is  estopped  from  setting 
up  as  a  defense  the  failure  to  have  such  additional  insurance 
noted  on  the  policy."  By  accepting  the  premium  and  issuing  the 
policy  with  knowledge  of  prior  insurance,  the  company  is  estop- 
ped to  declare  the  policy  void- because  such  prior  insurance  is  not 
written  in  the  policy.^ 

§  1216.  Insurers  cannot  repudiate  their  policy  on  the  ground- 
of  misstatement,  by  the  insured,  if  he  truly  stated  the  facts 
involved,  to  the  agent,  at  the  time  of  applying  for  the  policy,  and 
the  agent  drew  up  the  application  differently  from  the  facts 
stated.*  Where  the  agent  of  an  insurance  company,  who  is 
notified  in  accordance  with  the  conditions  of  the  policy,  of  the 
state  of  the  property  insured,  and  its  title,  but  fails  to  express  it 
on  the  face  of  the  policy  and  says  it  makes  no  difference,  that  it 
is  all  right  or  words  to  that  effect,  and  receives  the  premium,  the 


'  Beal  V.  Ins.  Co..  17  Wis.  241; 
Lasher  v.  lus.  Co.,  55  How.  Pr.  318; 
Bidwell  V.  Ins.  Co.,  24  N.  Y.  302; 
T5;ink  v.  Ins.  Co.,  31  Coun.  517; 
Moliere  v.  Ins.  Co.,  5  Rtiwle,  34;  Kel- 
logg V.  Ins.  Co.,  3  Wis.  254;  Coombs 
V.  Ins.  Co.,  43  Mo.  148;  Ames  v.  Ins. 
Co.,  14  N.  Y.  253;  Bartholomew  v. 
Ins.  Co.,  25  Iowa,  507;  Aj'res  v.  Ins. 
Co.,  21  la.  185;  Ins.  Co.  v.  Williams, 
39  Ohio  St.  534;  S.C,  48  Am.  R.  474; 
Mowry  V.  Rosendale,  74  N.  Y.  360; 
Greene T.  Ins.  Co.,  11  R.  I.  434;  Ins. 
Co.  V.  ilcCooke}',  33  Ohio  St.  555. 

^  Rowley  v.  Ins.  Co.,  36  N.  Y.  550; 
Ins.  Co.  V.  Davidson,  30  Md.  91; 
Warner  v.  Ins.  Co  ,  14  Wi.s.  318;  Beal 
V.  Ins.  Co.,  16  AVis.  241;  Kelly  v.  Ins. 
Co.,  3  Wis.  254;  Ames  v.  Ins.  Co.,  14 
N.  Y.  253;  Webster  v.  Ins.  Co.,  36 
Wis.  67;  Crane  v.  Ins.  Co.,  16  Md. 
269;  Mechler  v.  Ins.  Co.,  36  Wis.  665; 
Rathboue  v.  Ins.  Co.,  31  Conn.  193; 
Horwitz    V.    Ins.    Co.,   40  Mo.    557; 


Roberts  v.   Ins.    Co.,   41    Vv''is.    321; 
Mentz  V.  Ins.  Co.,  79  Pa.  St.  475. 

3  Webster  v.  Ins.  Co.  36  Wis.  67. 

*  Ins.  Co.  V.  Lewis,  48  Tex.  622; 
Miner  v.  Ins.  Co.,  27  Wis.  693;  Mas- 
ters V.  Ins.  Co.,  11  Barb.  624;  Bank 
V.  Ins.  Co.,  31  Barb.  517;  Ins.  Co.  v. 
Cooper,  50  Pa.  St.  331 :  Iron  Works 
V.  Ins.  Co.,  25  Conn.  465;  Ins.  Co.  v. 
Spencer,  53  Pa.  St.  355;  Sherman  v. 
Ins.  Co.,  39  Wis.  104;  Bank  v.  Ins. 
Co.,  31  Conn.  526;  Coombs  v.  Ins. 
Co.,  43  Mo.  148;  Ins.  Co.  v.  Kasey, 
25  Gratt.  248;  ^Miller  v.  Ins.  Co.,  31 
Iowa,  216;  McBride  v.  Ins.  Co.,  30 
Wis.  62;  Wood  v.  Dwarris,  11  H.  & 
N.  493;  McCall  v.  Ins.  Co.,  9  W.  Va, 
237;  Ins.  Co.  v.  Wcile,  28  Gratt.  389 
Ins.  Co.  V.  McGookey,  33  Ohio  St 
555;  Ins.  Co.  v.  AVright,  22  III.  462 
Uahlberg  v.  Ins.  Co.,  6  Mo.  App.  121 
Ins.  Co.  V.  Chipp,  93  111.  96;  Ring  v 
Ins.  Co.,  51  Yt.  563;  Ins.  Co.  v 
Spankneble,  52  111.  53 


CORPOEATIONS.  1357 

act  of  the  agent  is  sucli  a  waiver  of  the  conditions  named  as 
amounts  to  an  estoppel  injpais.^ 

§  121Y.  One  who  accepts  a  policy  of  insurance,  in  which  it 
is  expressly  provided  that  it  is  agreed,  and  declared  that  the 
policy  is  made  and  accepted,  upon  and  in  reference  to  the  applica- 
tion filed  in  the  office,  is  estopped  from  denj'ing  that  the  applica- 
I'ion  is  his.*  If,  in  drawing  up  an  application,  the  agent  acts  as 
the  agent  of  the  company,  and  neglects  to  incorporate  in  it  facts, 
which  are  essential  to  its  validity,  when  he  promises  the  applicant 
so  to  do,  the  company  is  estopped  to  set  up  the  omission,  for  the 
purpose  of  defeating  an  action  brought  upon  the  policy.^  Where 
the  acts  of  the  agent  are  witliin  the  scope  of  his  authority,  it  is 
the  same  as  if  it  is  done  by  the  company,  and  though  statements 
contained  in  the  application  are  untrue,  the  company  is  estopped 
from  showing  such  to  be  the  case.*  An  insurance  company, 
which  has  had  the  chance  of  a  contract  of  life  insurance  turning 
out  in  its  favor  cannot  afterwards  be  permitted,  on  the  ground  of 
conflict  with  its  rules,  to  escape  from  it.^  Sureties  on  a  bond 
given  to  secure  the  faitliful  performance  of  the  duties  of  an  agent, 
are  estopped  in  an  action  on  the  bond  from  showing  that  the 
agency  under  whicli  the  breach  of  the  bond  is  alleged  to  have 
been  committed,  was  different  from  that  described  in  their  own 
instrument." 

§  1218.  In  a  suit  upon  a  premium  note  given  to  a  mutual 
insurance  company,  to  recover  an  assessment  thereon  to  pay  a 
loss  bj  fire  ;  the  maker,  after  aiding  to  establish  the  corporation 

1  Franklin  v.  Ins.  Co.,  42  Mo.  456;  "  Draper  v.  Ins.  Co.,  3  Allen,  569. 

Horwitz   V.    Ins.    Co.,    40    Mo.   557;  ^  Kelly  v.  Ins.  Co.,  3  Wis.  254;  Clark 

Eowley  v.    lus.    Co.,  36  N.   Y.  550;  v.  Ins.  Co.,  40  N.  H.  333;  Alexander 

Ins.    Co.  V.  Goodall,  29  N.    H.   182;  v.  Ins.  Co.,  2  Hun,  655;  Beecher  v. 

Boehm   v.   Ins.    Co.,   35  K  Y.   131;  Ins.  Co.,  63  Iowa,454 

Busclie    V.    Ins.    Co.,    31    Mo.    546;  ^Plumb  v.  Ins.  Co.,  18  K  Y.  392; 

Whiled  V.    Ins.  Co.,  20  N.  Y.    Sup.  Vilas  v.  Ins.  Co.,  72  N.  Y.  590;  Ins. 

191;   Ins.    Co.    v.  Wells,  19   A.  L.  J.  Co.  v.  Baker,  94  U.   S.  610;  Baker  v. 

263;   Masters   v.   Ins.    Co.,    11    Barb.  Ins.   Co.,  64  N.   Y.  649;   Ins.    Co.  v. 

624;  Wood   v.  Dwarris,  11   H.  &  N.  Wilkinson,  13  Wall.  222. 

493;  Tuck  v.  Ins.  Co.,  56  N.  H.  326;  ^  Collett  v.  Morrison,  12  E.  L.  &Eq. 

Patten  v.    Ins.    Co.,    40  N.  H.   375;  171;  Meyer  v.  Ins.  Co.,  73  N.  Y.  516; 

Marshall  v.  Ins.  Co.,  27  N.  H.  157;  S.  C,  29  Am.  R.  200. 

Campbell  v." Ins.  Co.,  37  N.  H.  95.  « Ins.  Co.  v.  Colton,  26  Conn.  42. 


1358  The  Law  of  Estoppel. 

and  partaking  of  its  benefits,  is  estopped  to  deny  its  legal  exist- 
ence in  order  to  escape  liability  on  liis  premium  note.'  If  an 
insurance  company,  with  knowledge  of  breach  of  wan-anty  in  an 
application,  which  avoids  the  policy  ah  initio,  make  and  receive 
assessments  from  the  insured  on  his  premium  note  ;  after  the  fire 
it  will  be  estopped  from  setting  up  the  breach  of  M'arranty  in 
defense  to  an  action  on  the  policy.*  So  where  the  administrator 
after  death  of  the  assured  .paid  assessments  on  the  premium 
note  for  losses  accruing  subsequently  to  the  death  of  the  assured, 
the  company  were  held  estopped  to  denj'  the  validity  of  the  in- 
surance after  that  event."  So,  Avhere  an  insurance  company, 
with  full  knowledge  of  a  forfeiture,  collects  assessments  upon 
premium  notes  given  by  the  assured  for  losses  occurring  after 
knowledge  of  such  forfeiture,  they  thereby  waive  the  forfeiture 
and  are  estopped  from  setting  it  up  as  a  defense  to  an 
action  on  the  policy.^  In  an  action  on  a  premium  note  to 
a  mutual  insurance  company,  such  notes  furnishing  the  fund  to 
which  the  other  insured  look  for  indemnity ;  the  maker  is 
estopped  from  denying  that  he  had  an  insurable  interest.  He 
can  only  get  rid  of  his  note  by  sun-endering  his  policy  and  taking 
it  up  ;  nor  can  he  reduce  his  liability  on  the  note,  by  setting  up 
that  he  was  only  interested  in  part  of  the  property  described,* 
Where  a  policy  in  a  mutual  insurance  company  was  by  its  terms 
to  be  suspended  if  the  assured  should  neglect  for  ten  days  to  pay 
an  assessment  after  it  had  been  levied,  Nearly  fifteen  munths 
after  the  policy  was  suspended  in  consequence  of  the  non-payment 
of  two  assessments,  the  assured  sold  the  property  to  another 
party,  and  with  the  consent  of  the  company  assigned  the  policy 
to  the  purchaser,  who  at  the  same  time  executed  a  mortgage  to 
the  vendor  and  re-assigned  the  policy  to  him  with  consent  of  the 
company.  At  the  time  of  the  sale  and  assignment  of  the  policy 
the  vendee  was  not  informed  of  the  defect  in  the  policy  by  reason 
of  the  non-pajnnent  of  the  assessments.  The  directors  of  the 
company,  not  having  spoken  to  him  in  regard  to  the  defect,  they 


>  Ins.  Co.  V.  Horner,  17  Ohio,  407.        126;  Carrigan  v.  Ins.  Co.,  53  Vt.  418; 
a  Frost  V.  Ins.  Co.,  5  Deiiio,   l.J4.  S.  C,  38  Am.  R.  G87. 

3  Tuttle  V.  Robinson,  33  N.  H.  104.  ^  Ins.  Co.   v.  Belknap,  9  Cush.  140; 

*  Keenan   v.    Ins.    Co.,    13    Iowa,      Ins.  Co.  v.  McKelway,    13  N.  J.  E. 

133. 


Corporations.  1359 

waived  it,  and  were  estopped  from  setting  it  up,  in  an  action  for 
the  insurance,  to  which- the  jnirchaser  of  the  property  had  inno- 
cently trusted  till  the  loss  liappened.'  In  an  action  by  the 
receiver  of  an  insolvent  insurance  company,  upon  an  insurance 
premium  note,  the  maker  is  estopped  from  setting  up  as  a  defense 
that  the  policy  and  note  are  void  by  reason  of  his  misstatements 
or  omissions  at  the  time  of  procuring  the  policy."  One  who 
affects  an  insurance  with  an  incorporated  company  by  the  terms 
of  whose  charter  he  becomes  a  member  of  the  corporate  body, 
and  gives  a  premium  note  in  consideration  therefor,  payable  to 
the  company  by  its  corporate  name,  is  estopped  from  denying  the 
corporate  existence  of  the  company  in  an  action  against  him  on 
the  note.^  The  affidavit  of  loss  made  by  the  insured  estops  him  to 
deny  in  a  subsequent  suit,  on  the  policy,  any  material  facts  therein 
stated.*  It  is  held  that  where  the  policj^  itself  contains  an  express 
limitation  upon  the  power  of  agents,  an  agent  has  no  legal  right 
to  contract  as  against  the  company  with  the  party  to  whom  the 
policy  has  been  issued  so  as  to  change  the  terms  of  the  policy,  or 
to  dispense  with  the  performance  of  any  part  of  the  consider- 
ation, either  by  parol  or  in  writing,  and  such  party  is  estopped 
by  accepting  the  policy  from  setting  up  powers  in  the  agent  at 
the  time,  in  opposition  to  the  limitations  and  conditions  in  the 
policy.' 

§  1219.  AVhere  a  party  sues  and  obtains  judgment  against  a 
corporation,  he  is  estopped  from  afterwards  denying  its  corporate 
capacity  in  an  action  upon  the  judgment.^  Where  a  corporation 
makes  an  assignment,  and  creditors  claim  under  the  assignment, 
they  are  estopped  from  asserting  a  claim  upon  the  stockholders 
personally  for  the  balance  of  their  debts.''  But  in  Massachusetts, 
proving  a  claim  against  a  corporation  in  insolvency  and  receiving 
a  dividend  is  not  a  bar  to  a  suit  for  the  balance  of  the  debt.*  A 
judgment  is  conclusive  evidence  of  the  indebtedness  of  a  corpora- 

'  Hale  V.  Ins.  Co.,  32  N.  H.  395.  «  Pochelou  v.  Kemper,  14  La.  Ann. 

»  Huntley  v.  Perry,  38  Barb.  569.  308;  Sergeant,  in  re,  17  Vl.  425. 

3  Cabin  V.  Ins.  Co.,  2  Doug.  (Micb.)  ■>  Van  Hook  v.  Wbitlock,  26  Wend. 

124.  43. 

■*  Irving  V.  Ins.    o.,  1  Bosw.  507.  ^  Coburn  v.  Paper  Co.,   10  Gray, 

5  Catoir  v.    Ins.   Co.,   33  N.   J.  L.  248. 
487. 


1360  The  Law  of  Estoppel. 

tion  to  the  plaintiff,  and  its  validity  cannot  be  inqnired  into,  but 
a  defendant  may  sliow  that  it  has  been  paid.'  In  Maine  a  judg- 
ment against  a  corporation  is  binding  upon  the  stockholders  until 
reversed,  and  is  conclusive  upon  them  in  a  subsequent  suit  by  the 
same  plaintiff.*  And  a  stockholder  in  a  corporation  is  so  far 
privy  as  to  bring  error  to  reverse  a  judgment,  but  until  reversed 
such  judgment  is  valid  against  him.  There  can  be  no  affidavit  of 
defense  made  against  the  judgment,  it  is  conclusive  against  him. 
In  Massachusetts  to  render  a  stockholder  liable  he  must  be  sum- 
moned, but  where  he  allows  judgment  to  go  by  default,  he  is 
estopped  from  denying  the  existence  of  the  corporation  in  a  col- 
lateral action,  or  his  liability,  to  be  arrested  as  a  stockholder  upon 
the  execution  against  the  corporation.'  A  judgment  of  record 
recovered  on  a  contract  of  a  corporation  cannot  be  impeached,  on 
the  ground  that  the  contract  was  void  for  want  of  corporate 
power  to  enter  into  it.* 

§  1220.  AVhere  a  corporation  takes  property  for  private  pur- 
poses under  a  void  and  unconstitutional  act,  a  party  receiving  the 
amount  of  the  damage  assessed  waives  the  benefit  of  the  illegal- 
ity, and  the  receipt  of  the  money  operates  as  an  estoppel  and  has 
the  same  effect  as  a  conveyance,  and  vests  the  title  in  the  cor- 
poration. Where  a  party  having  a  right  to  appear  and  object, 
but  does  not,  and  takes  the  money  for  his  damage,  he  and  his  heirs 
are  estopped  from  claiming  title  to  the  property  so  taken.  The 
receipt  of  the  n)oney  is  an  express  consent  to  the  taking  of  the 
property,  and  estops  the  party  and  those  claiming  under  him 
from  alleging  an  unconstitutional  taking  of  private  property  for 
private  purj)oses,^  and  that  the  title  to  such  premises  did  not  vest 
in  the  corporation. 

§  1221.  If  a  party  is  guilty  of  laches  or  unreasonable  delay  in 
the  enforcement  of  his  rights,  he  thereby  forfeits  his  claim  to 
equital)le  relief.  The  rule  is  more  especially  applical)le  to  cases 
•where  a  party,  being  cognizant  of  his  rights,  does  not  take  those 

>  Corse  V.  Sandford,  14  Iowa,  235.  St.  543  ;  Glenn  v.   Williams,  CO  Md. 

»   Milliken  v.   Whilchouse,    49  Me.  93;  Ante,  Cliap.  3,  ^§  183  et  seq. 
527;   Slee   v.    Bloom,  20   Johns.   669;         3  Richmond  v.  Willis,  13  Gray,  18. 
Couklin  V.  Furman,  8  Abb.  Pr;  (N.  S.)         ^  Bank  v.  Stevens,  1  Ohio  St.  233. 
161;  Miller  V.  White,  8  Abb.  Pr.  (N.  ^Sherman  v.    McKeon,   38  N.  Y. 

S.)  48 ;  Bullock  v.  Kilgour,  39  Ohio  275. 


COEPOEATIONS. 


1361 


steps  to  arrest  them,  which  are  open  to  him,  but  lies  by  and 
suffers  other  parties  to  incur  expenses  and  enter  into  engagements 
and  contracts  of  a  burdensome  character/  Thus,  a  property 
holder  cannot  quietly  permit  money  to  be  expended  in  work 
which  benefits  his  land,  under  a  contract  with  the  city,  and  then 
deny  the  power  of  the  city  to  make  the  contract.*  Where  several 
tax-payers  petition  the  common  council  to  cause  certain  improve- 
ments to  be  made,  as  grading,  macadamizing,  or  paving  streets 
and  the  improvements  or  work  is  completed  in  compliance  there- 
with, without  complaint  or  objection  on  their  part,  to  the  acts  of 
the  contractor  or  common  council,  in  relation  thereto,  they  are 
equitably  estopped  to  deny  that  the  common  council  had  no  con- 
stitutional power  to  do  it.  It  would  be  the  perpetration  of  a 
gross  fraud,  after  their  willing  and  active  assent ;  and  when  they 
impliedly  consent  that  an  assessment  shall  be  made,  to  pay  for 


■  ^runcey  V.  Joest,  74  Ind.  409;  Kel- 
logg V.  Ely,  15  Ohio  St.  64;  Jackson 
V.  Detroit,  10  Mich.  248;  Evansville 
V.  Pfisterer,  34  Ind.  36;  ISTew  Haven 
V.  R.  R.,  S8  Conn.  423;  S.  C-,  9  Am. 
R.  399;  Lafayette  v.  Fowler,  34  Ind. 
140;  Wiggin  v.  Mayor.  9  Paige,  10; 
Dows  v.^Chicago,  11  Wall.  118;  Hel- 
lenkamp  v.  Lafayette,  30  Ind.  192; 
Weber  v.  City,  1  Cal.  455;  Rochedale 
Co.  V.  King,  16  Beav.  63;  Ferguson 
V.  Landrail,  5  Bush,  230;  Motz  v.  De- 
troit, 18  Mich.  495;  Lyons  v.  Cool- 
idge,  89  111.  529;  Sleeper  v.  Bulien,  6 
Kas.  300;  Pease  v.  Whitney,  8  Mass. 
93;  Peoria  v.  Kidder,  20  111.  351; 
Commonwealth  v.  Thomas,  32  Pa.  St. 
218;  Chapman  v.  R.  R.,  6  Ohio  St. 
119;  Jolinson  v.  County,  24  111.  75; 
R.  R.  Co.  V.  R.  R.  Co.,  28  Iowa,  437; 
Brown  v.  Bowen,  30  K  Y.  519; 
Young  V.  Bush,  8  Bosw.  1;  State  v. 
Vanhorne,  7  Ohio  St.  327;  Prettyman 
V.  Supervisors.  19  111.  406;  Zabriskie 
V.  R.  R.,  23  How.  381;  Pittsburg  v. 
Scott.  1  Pa.  St.  309;  R.  R.  Co.  v. 
Stewart,  39  low^a,  267;  Buffington  v. 
R.  R.  Co.,  74  Pa.  St.  162;  Renick  v. 
Luddiugton,  20  W.  Va.  511;  Patter- 
VoL.  L— 86 


son  V.  Baumer,  43  Iowa,  477;  Math- 
ews V.  Sands,  29  Ala.  136;  Porter  v. 
Hanley,  10  Ark.  180;  Hayiiesv.  Meek, 
20  Cal.  288;  Williams  v.  Lord  Jersey, 
Cr.  &  Ph.  91 ;  Bradford  v.  Patterson, 
1  A.  K.  Marsh.  346;  Bridge  Co.  v. 
Stewart,  3  How.  412;  Johnson  v. 
Glasscock.  2  Ala.  519;  Cunningham  v. 
Ashley,  13  Ark.  653;  Reed  v.  West, 
70  111.  479;  Campbell  v.  Campbell,  22 
Gratt.  049;  Warren  v.  Raymond,  17 
S.  C.  163;  State  v.  Jersey  City,  40  IST. 
J.  L.  483;  Grey  v.  R.  R.  Co.,  1  Grant 
Cas.  412;  Kent  v.  Mining  Co.,  78  N. 
Y.  169;  Terry  V.  Lock  Co.,  47  Conn. 
141;  Hilton  v.  Granville,  Cr.  &  P. 
292;  Graham  v.  R.  R.  Co.,  2  H.  &  T. 
450. 

^  Hellenkamp  v.  Lafaj'ette,  30  lud. 
192;  Palmer  V.  Stumpli,  29  Ind.  329; 
Nevius  V.  Alkire,  36  Ind.  189;  Corrj' 
V.  Gaynor.  22  Ohio  St.  584;  Yerplanck 
V.  New  York,  2  Edw.  Ch.  220;  Flora 
V.  Cline,  89  Ind.  208;  Vose  v.  Cock- 
croft,  44  N.  Y.  415;  Walker  V.  City 
Council,  1  Bail.  Ch.  443;  Griswold 
v.  Bay  City,  35  Mich.  453;  Straub 
V.  Alleghany,  1  Pennypacker,  424; 
Woolsey,  in  re,  N.  Y.  135. 


1362 


The   Law  of  Estoppel. 


such  iinprovements,  whether  the  assessment  is  illegal  or  not,  they 
are  estopped  troiii  asking  a  court  of  equity  to  interpose  an  injunc- 
tion to  restrain  the  collection  of  the  tax.'  And  where  an  individual, 
whose  land  was  appropriated  for  the  purpose  of  a  municipal  cor- 
poration, was  a  member  of  the  city  council  which  authorized  the 
improvement ;  one  of  those  who  petitioned  them  for  the  purpose, 
a  member  of  the  committee  to  whom  the  petition  was  referred, 
participated  in  the  proceedings  which  resulted  in  the  opening,  and 
stood  silently  by  while  the  city  was  making  large  expenditures 
upon  the  work,  he  was  held  not  to  have  either  a  legal  or  equitable 
right  to  set  up  his  title  against  the  city."  The  connnon  council  of 
a  city  are,  in  principle  and  in  fact,  nothing  more  than  agents  of 
the  property-owners,  in  making  improvements  in  the  streets ;  and 
when  the  property-owners  benelited  thereby  suffer  the  improve- 
ments to  proceed  and  be  completed  without  remonstrance,  they 
should  be  held  to  have  affirn)ed  the  acts  of  their  agents  in  con- 
structing such  work.'  One  acting  in  procuring  an  ordinance  for 
grading  a  street,  selected  thereunder  commissioners,  superintend- 
ing the  improvement,  selling  the  city  bonds  to  defray  the  cost,  and 
assessing  the  abutting  properties :  Hdd,  to  be  estopped  to  deny 


'  Motz  V.  Detroit,  18  Mich.  496; 
Browu  V.  Bowcu,  30  N.  Y.  519; 
Young  V.  Busline]  1,.  8  Bosw.  1;  State 
V.  Tieuton,  36  N.  J.  L.  499  ;  Kearney 
V.  Covington,  1  Met.  (Ky.)339;  Swift 
V.  Williamsburgli,  24  Barb.  43;  Sex- 
ton v.  Smith,  32  Wis.  299;  Kellogg  v. 
Ely,  15  Ohio  St.  64;  Burlington  v. 
Gilbert,  31  Iowa,  356;  L:i  Fayette  v. 
Fowler,  34  Ind.  140;  S.  C,  7  Am.  R. 
143;  Qinnlan  v.  Meyers,  29  Ohio  St. 
500;  People  V.  Goodwin,  5  N.  Y.  571; 
Sleeper  v.  Bulleu,  6  Ka.s.  300;  Ilarrup 
V.  Baylcy,  6  E.  &  B.  224;  llarrui)  v. 
Landrail,  1  Bush,  548;  S.  C,  5  Bu.sh, 
230;  Wild  v.  Deig,  43  Ind.  455;  State 
V.  Hudson.  34  N.  J.  L.  25;  Vau  Hook 
V.  Wliitloek.  26  AVeud.  43;  Karber  v. 
Nellis,  22  Wis.  215;  People  v.  City, 
65  Barb.  1;  City  v.  B.  R.,  38  Conn. 
421;  State  v.  Clark,  38  N.  ,1.  L.  102; 
State  V.  Commissioners,  30  N.  J.  L. 
247;  Wiggins  V.  Mayor,  9   Paige,  24; 


State  V.  Blake,  35  N.  J.  L.  208;  Louis- 
ville v.  Hyatt,  5  B.  Mon.  19;  State  v. 
Hoboken,  36  N.  J.  L.  291;  Bissell  v. 
Jefferson villo,  24  How.  287;  Patter- 
sou  V.  Baunier,  4}  Iowa,  477;  "Webber 
V.  San  Francisco,  1  Cal.  455;  Evans- 
villev.  Ptisterer,  34  Ind.  36;  People 
V.  Rochester,  21  Barb.  656;  Grimm  v. 
Schickle,  4  ;Mo.  App.  585;  People  v. 
Muri'ay,  5  Hill,  468;  Mayor  v.  Scott, 
1  Pa.  St.  309;  Lee  v.  Tillottson,  24 
Wend.  337. 

-  Pittsburgh  v.  Scott,  1  Pa.  St.  309; 
Weber  v.  San  Francisco,  1  Cal.  455; 
Tosh  V.  Adams,  10  CusIl  252;  War 
ncr  V.  Grand  Haven,  30  Mich.  24; 
Peoria  v.  Kidder,  26  111.  351;  Pease  v. 
Whitiie}',  8  Mass.  93;  La  Fayette  v. 
Fowler,  34  Ind.  140;  Story  v.  Furmau, 
25]Si.  Y.  230;  Evansviile  v.  Plisteier, 
34  Ind.  36;  Ilagar  v.  Supervisors,  47 
Cal.  222. 

■<  People  v.  Utica,  65  Barb.  1. 


CORPOKATIONS.  1363 

the  validity  of  the  act  under  which  the  ordinance  was  passed,  and 
the  mode  of  assessment  thus  adopted."  But  where  parties  peti- 
tion the  municipal  authorities  to  have  improvements  made,  the 
work  is  to  be  done  as  provided  by  law,  and  they  will  not  be  estop- 
ped to  object  that  the  proceedings  have  been  conducted  in  dis- 
regard to  law.'  But,  while  such  work  is  generally  undertaken, 
because  demanded  by  public  interests,  yet  the  land-owners  in  the 
vicinity  of  the  improvement,  are  interested  therein.  They  must 
all  be  presumed  to  have  had  notice  of  the  action  of  the  author- 
ities in  ordering  the  work  and  in  causing  it  to  be  prosecuted. 
Especially  where  some  of  them  signed  the  petition  asking  that 
the  work  be  done.  They  cannot  be  presumed  to  be  ignorant  of 
any  irregularities  up  to  and  including  the  letting  of  the  contract. 
They  should  have  objected  thereto  before  the  expenditure  of 
money  and  labor  by  the  authorities  and  contractor.  The  law  will 
not  permit  them  to  remain  silent  until  after  the  work  is  done  and 
then  raise  such  objections  to  defeat  the  collection  of  taxes.  The 
unconstitutionality  of  an  assessment  for  a  local  municipal  improve- 
ment, for  want  of  power,  may  not  be  taken  advantage  of  by  those 
who  acted  as  officers  of  election  or  commissioners,  voted  for  com- 
missioners, or  actively  participated  in  causing  the  improvement 
to  be  made  ;  but  one  who  merely  signed  the  petition,  and  was 
-silent  and  passive  is  not  estopped  unless  he  had  knowledge  of  the 
making  of  the  improvement,  and  that  his  property  was  to  be 
assessed,  and  that  the  proceedings  were  invalid  or  defective ;  and 
some  special  benefit  accrued  to  his  property  from  the  improve- 
ment.' 

§  1222.  In  the  language  of  the  Supreme  Court  of  Wisconsin 
it  may  be  said  :  "  But  of  late  years,  much  more  than  formerly, 
the  doctrine  of  estoppel,  most  wholesome  and  just  in  its  opera- 
tion when  properly  applied,  has  been  extended  to  these  municipal 
corporations,  so  as  to  bind  and  conclude  them  by  their  own  acts 
and  acquiescence,  and  the  acts  and  acquiescence  of  their  officers, 
wherever  an  estoppel  would  exist  in  the  case  of  natural  persons. 
It  is  now  well  settled,  tliat  as  to  matters  within  the  scope  of  their 

1  Bidwell  V.  Pittsburg,   85  Pa.  St.      104;  Bultiraore  v.  Porter,  18  Md.  284; 
412.  Sharp,  in  re,  1  Thomp.  &  C.  427. 

»  Sleclvert  v.  East  Saginaw,  22  Mich.  »  Tone  v.  Columbus,  39  Ohio  St.  218 

S.  C,  48  Am.  R.  438. 


1864 


The  Law  of  Estoppel. 


powers  and  the  powers  of  their  olficers,  such  corporations  may  be 
estopped  upon  the  same  principles  and  under  the  same  circum- 
stances as  natural  persons."'  To  illustrate  the  application  of  this 
equitable  estoppel,  some  cases  may  be  referred  to,  not  connected 
with  the  subject  of  municipal  bonds,  which  will  be  hereafter 
examined.  Thus,  the  lien  of  an  assessment  erroneously  discharged 
of  record,  cannot  be  restored  so  as  to  affect  l)ona  fide  purchasers." 
So,  where  the  authorities  of  a  city  acquiesce  for  a  number  of 
years  (in  this  case  19),  in  the  use  of  a  public  street  by  a  railroad 
company,  in  maintaining  an  arch  over  the  street,  and  consented 
to  such  use  of  the  street  until  it  became  necessary  to  rebuild  the 
arch ;  .the  city  was  estopped  from  compelling  the  company  to 
remove  the  arch,  until  its  rebuilding  was  necessary.'  So,  it  was 
hdd,  that  a  city  or  county  was  estopped  to  deny  the  ownership 
of  real  estate  by  a  part}',  whom  it  had  permitted  to  occupy  the 
same  and  pay  taxes  thereon  levied  by  itself.^  This  application  of 
the  doctrine  is  denied,  and  a  municipality  is  held  not  to  be  estop- 
ped to  claim  title  to  the  land,  because  its  officers,  without  author- 
ity, have  assessed  the  same  to  private  individuals,  and  returned  it 


'  Kneeland  v.  Gilman,  34  Wis.  39. 
Martel  v.  East  St.  Louis,  94  111. 
67;  Fredericksburg  v.  R.  R.  Co.,  25 
Graut  U.  C.  360;  Peek  v.  Burr,  10  N. 
Y.  294;  Roby  v.  Cliicajjro,  64  111.  447; 
Goodrich  v.  Milwaukee,  24  Wis.  432; 
R.  R.  Co.  V.  Joliet,  79  111.  39;  Manf. 
Co.  V.  Elizabetli,  42  N.  J.  L.  249; 
r)epf)t  Co.  V.  St.  Louis,  76  Mo.  393; 
State  V.  Dent,  18  Mo.  313;  Graut  v. 
Davenport,  18  Iowa,  179;  State  v. 
Boscawen,  32  N.  II.  331 ;  R.  R.  Co.  v. 
Mariou,  36  Mo.  294;  Logan  Co.  v.  Lin- 
coln, 81  111.  156;  Slater  v.  Ry.  Co.,  25 
Grunt  U.  C.  363;  Lane  v.  Kennedy,  13 
Ohio  St.  42;  Bank  v.  Seneca  Falls,  15 
F.  R.  783;  R.  R.  Co.  v.  People,  91 
111.  251;  Mayor  v.  Sheffield,  4  Wall. 
189:  Wilson  v.  Wlieeling,  19  W.  Va. 
323;  Houfe  v.  Fulton.  34  Wis.  608; 
Codner  v.  Bradford,  3  Chand.  (Wis.) 
291;  Williams  V.  Cunniugton,  18  Pick. 
312 ;  McDonough  v.  Virginia,  6  Nev. 
90;  Gilbert  v.    Manchester,  55  N.  H. 


298;  Slmplot  v.  Ry.  Co.  49  Iowa,  630; 
Genoa  v.  Van  Alstyne,  108  111.  558; 
Pembroke  v.  Ry.  Co.,  30  Ontario, 
503;  Petersburg  v.  Mappin,  14  111. 
193;  Canal  Co.  v.  King,  3  Sim.  N.  S. 
78.  Brewster  v.  County,  4  Grant  U. 
C.  443 ;  Braill  v.  Aguew,  14  111.  App. 
514;  Dann  v.  Spuirier,  7  Ves.  235; 
Curnen  v.  Mayor,  79  N.  Y.  511 ;  Piince- 
ton  V.  Templeton,  78  111.  68;  Brandrutf 
Y.  Harrison  Co.,  50  Iowa,  164;  Dayton 
V.  Pease,  4  Ohio  St.  80;  Ilasbrouck  v. 
Milwaukee,  21  Wis.  217;  Biickman  V. 
Charleston,  42  N.  H.  125;  Brady  v. 
Mayor,  20  N.  Y.  312;  and  see  cases 
cited  po.st  §§  1230  et  seq.,  on  Munici- 
pal Bonds. 

■^  Curnen  v  New  York,  79  N.  Y. 
511. 

8  Ry.  Co.  V.  People,  91  111.  251. 

*  Simplot  V.  Dubuque,  49  Iowa, 
630;  Brandruff  v.  Harrison  Co.,  50 
Iowa,  164;  Adams  Co.  v.  R.  R.  Co., 
39  Iowa,  507. 


CORPOEATIONS.  1365 

as  delinquent,  and  sold  the  same  at  a  tax  sale.  The  ground  of  this 
latter  rule  is  that  the  acts  of  its  officers  are  unauthorized  and  void, 
and  that  a  purchaser  at  a  tax  sale  is  bound  to  take  notice  of  the 
extent  of  their  powers.*  If  this  were  not  the  correct  rule,  unscru- 
pulous officials  might  deprive  a  county  or  citj  of  all  its  property, 
and  there  would  be  no  redress.  The  true  principle  in  such  cases 
is  well  settled.  That  one  cannot  do  indirectly,  what  cannot  be 
done  directly,  and  where  there  is  no  power  or  authority  vested  by 
law  in  officers  or  agents,  no  void  act  of  theirs  can  be  cured  by  aid 
of  the  doctrine  of  estoppel.  Where  there  is  power,  and  it  is 
irregularly  exercised,  or  there  are  defects  and  omissions  in  exer- 
cising the  authority  conferred  by  law,  the  doctrine  of  equitable 
estoppel  may  well  be  applied  by  courts.  Thus,  a  city  having 
acted  on  its  own  construction  of  a  special  ordinance  in  paving  a 
street  up  to  a  supposed  required  grade,  cannot  deny  its  correct, 
ness  to  the  injury  of  a  lot-owner  required  to  comply  with  the 
ordinance."  So,  where,  under  a  statute  a  company  proceeded  to 
acquire  land  for  depot  purposes,  which  was  erected  at  great 
expense,  and  the  city  received  a  large  amount  from  the  company 
towards  building  the  bridges  necessary  to  adapt  neighboring 
streets,  to  the  construction  of  the  depot,  and  by  the  ordinance 
permitting  its  construction.  Subsequently,  the  city  proceeded  to 
repossess  itself  of  the  land  on  which  the  depot  had  been  erected 
on  the  ground  that  the  land  was  a  street,  and  that  no  power 
existed  to  appropriate  for  such  purposes.  The  act  being  broad 
enough  to  warrant  the  condemnation  of  the  street,  and  that  were 
it  not,  the  city,  by  its  conduct  w^as  estopped  from  taking  action 
to  re-appropriate  the  land  so  taken.'  Thus,  a  city  cannot  be 
allowed  to  recover  a  penalty  from  a  person  for  pursuing  a  trade 
or  calling,  for  the  privilege  of  which  the  city  has  received  and 
retain  the  consideration  exacted  of  him.  In  such  case  it  is 
immaterial  whether  the  ordinance  under  whi(!h  the  privilege  was 
granted  was  valid  or  invalid,  or  whether  the  agents  acting  on 
behalf  of  the  city  were  de  facto  or  de  jure  officers,  or  no  officers 

»  St.  Louis  V.  Gorman,  29  Mo.  593;  v.  Boston,  1  Allen,  417. 

Walcott  V.  Swampscott,  1  Allen,  101;  ^  Goodrich  v.  Milwaukee,  24  Wis. 

McFarland   v.    Kerr,   10   Bosw.  249  ;  423;  Chicago  v.  AVheeler,  25  111.  478. 

Rossire  v.  Boston,  4  Allen,  57;  But-  ^  Union  Depot  Co.   v.    St.  Louis,  8 

trick  V.  Lowell,  1  Allen,  172;  Kimball  Mo.  App.  412;  S. C,  76  Mo.  393. 


1366  The  Law  of  Estoppel. 

at  all.  Where  a  person  takes  out  a  license  to  keep  a  drain  sltop 
within  a  city,  pnrsnant  to  an  ordinance  of  the  city  issued  by 
de  facto  officers  of  the  corporation,  and  paj's  into  the  city  treasury 
the  sum  exacted  therefor,  and  gives  the  proper  bonds,  before  tlic 
city  can  maintain  an  action  against  him  for  the  penalty  for  carry- 
ing on  the  business  without  a  license,  it  must  revoke  the  license 
and  return  him  his  money.  The  doctrine  of  estoppel  in  ]pai8 
applies  to  municipal  corporations,  but  the  public  will  only  be 
estopped  or  not,  as  justice  and  right  may  require.  Any  positive 
acts  by  municipal  officers  which  may  have  induced  the  action  of 
the  adverse  party,  and  where  it  would  be  inequitable  to  permit 
the  corporation  to  stultify  itself  by  re-enacting  what  its  officers 
have  done,  will  work  an  estoppel.  Where  a  city  receives  and 
retains  money  paid  by  a  party  foi-  a  license,  to  keep  a  dram  shop, 
with  a  knowledge  of  the  purpose  for  which  it  was  paid,  this  will 
be  equivalent  to  an  adoption  by  the  city  of  the  acts  of  the  officers 
who  assumed  to  act  on  its  behalf  in  issuing  the  license,  and  will 
make  such  acts  its  own,  although  such  officers  were  not  de  jure 
officers  of  the  city.  Where  the  act  done  is  within  the  powers  of 
the  corporation,  and  both  parties  have  proceeded  as  if  all  the 
formalities  have  been  strictly  complied  with,  in  consequence  of 
which  rights  have  attached,  each  party  is  estopped  to  set  up,  with 
a  view  of  defeating  the  rights  of  the  other,  that  the  nmnicipality 
has  neglected  to  observe  some  regulation,  that  it  should  have  per- 
formed prior  to  entering  into  the  transaction.'  Thus,  a  city  can- 
not set  up  its  own  illegality,  of  its  assessment  as  a  defense  to  an 
action  for  damages  for  land  taken  by  it  for  use  as  a  street." 
Where  a  corporation  is  sued  for  an  injury  growing  out  of  the 
negligence  of  the  corporate  authorities  in  their  care  of  the  streets 
of  the  corporation,  they  cannot  defend  themselves  on  the  ground 
that  the  formalities  of  the  statute  were  not  pursued  in  establishing 
the  street  originally.  If  the  authorities  of  a  city  or  town  have 
treated  a  place  as  a  public  street,  taking  charge  of  it  and  regulat- 
ing it  as  other  streets,  they  cannot,  when  sued  for  an   injury, 

'  Martel  v.  East  St.  Louis.  94  111.  pic  v.  Lowell.  9:\Iicli.  144;  Higgins  v. 

67;  Oskosh  v.  State,  59  Wis,  425.  Chicago,  18  111.  276. 

"  Rose  V.   Baltimore,  51   Md.  256;  ^  (Chicago  v.    Wheeler,  25  111.  478; 

Chicago  V.  Wheeler,  25  111.  478;  State  People  v.  Lowell,  9  Mich.  144. 
V.  Jersey  City,  40  N.  J.  L.  483;   Pec- 


Corporations.  1367 

defend  themselves  by  alleging  want  of  antliority  in  establishing 
the  street.'  So,  when  a  petition  for  grading  a  street  is  presented 
to  the  city  council,  and  it  makes  a  contract  for  it,  and  after  the 
work  has  been  done  and  a  special  tax  has  been  levied  to  pay  for 
the  same,  it  is  estopped  from  denj'ing  the  validity  of  the  contract 
or  its  liabilit}^  to  the  contractors  for  the  grading.^  So,  after  a  city 
has  taken  possession  of  a  piece  of  ground,  used  and  claimed  it  as 
a  street,  entered  into  a  contract  to  have  it  graded,  and  after  the 
work  has  been  done  and  accepted  by  the  city,  it  will  be  estopped 
from  denying  that  the  street  was  ever  legally  laid  out  or  dedicated 
as  such,'  So,  a  board  of  education  which  has  long  acted  and  been 
recognized  as  a  legal  body,  cannot  avoid  liability  on  bonds  issued 
on  behalf  of  its  school-district,  by  showing  that  the  district  was 
not  legally  organized." 

§  1223.  A  corporation  may  become  bound  and  estopped, 
otherwise  than  under  a  corporate  seal,  and  their  undertakings  and 
admissions  may  be  evidenced  otherwise  than  by  records,  resolu- 
tions, by  laws,  ordinances,  or  other  wi'itten  documents.  Technical 
as  well  as  equitable  estoppels  apply  to  corporations  as  well  as  to 
individuals.  The  ratification  of  a  contract  by  a  corporation  may 
be  inferred  from  facts  attending  the  transaction,  and  where  per- 
sons assuming  to  act  as  agents  of  a  corporation,  but  without  legal 
authority,  make  a  contract,  and  the  corporation  receive  the  benefit 
of  it  and  use  the  property  acquired  under  it,  such  acts  will  ratify 
the  contract,  and  render  the  corporation  liable  thereon.^  Corpo- 
rations, in  regard  to  their  contracts,  are  upon  the  same  basis  as 
natural  persons,  open  to  the  same  implications,  receiving  the 
benefit  of  the  same  j)i"esumptions." 

J  Mayor  V.  Sheffield,  4  Wall.  189.  43  Wis.  420;   Lovett  v.    Church,   13 

=*  Sleeper  v.  Bullen,  6  Kas.  300.  Barb.    67  ;   Kneeland   v.    Gilman,    24 

«  Leavenworth  v.    Laing,    6    Kas.  Wis.  39;   Darst  v.    Gale,  83  111.  36; 

274.  Commonwealth  v.    Turnpike   Co.,  3 

■*  Sav.  Inst.  V.  Board,  &c.,  75  Mo.  Pick.  327;   Argenti  v.  San  Francisco, 

408.  16  Cal.  255;  New  Orleans  v.  Bank,  31 

^  Bank  V.  Patterson,  7  Cranch,  297;  La.   Ann    560;   Cook  Co.   v.  Harnis, 

Gooding  v.  R  W.  Co.,  17  Beav.  132;  108  111.  151. 

Muhlman  v.  Ins.  Co.,  6  W.  Va.  508;  «  Bank  v.  Dandridge,  12  Wheat.  70; 

New  Athems  v.   Thomas,  82  111.  259;  Bank  v.  Root,  2  Met.  522;   R.  R.  v. 

Memphis  v.  Memphis,   &c,.,  9  Heisk.  Babcock,  6  Met.  346;  Burgess  v.  Pure, 

531;  Germantown,  &c.  Co.  v.  Dhein,  2  Gill,  11;  King  v.  Armory,  1  Term 


1368  The  Law  of  Estoppel. 

§  1224.  A  citj'  is  bound  ami  estopped  by  acts  of  its  officers 
within  knowledge  of  its  common  council  without  objection.' 
Tlius,  where  goods  are  legally  purchased  by  the  town  agent, 
assuming  tlie  right  to  pledge  the  town's  credit  for  the  price,  and 
the  town  afterwards  receives  them  with  a  knowledge  of  the  way 
in  which  they  were  purchased,  the  town  is  estopped  from  deny- 
ing their  liability.'  But  where  a  contract,  under  which  work  is 
done  for  a  municipal  corporation,  is  void,  because  entered  into  in 
violation  of  its  charter,  the  contractor  cannot  recover  for  it  in 
any  form,  neither  under  the  contract  nor  upon  a  quantum  meruiU 
and  a  subsequent  ratification  of  the  contract,  before  or  after  the 
work  is  done,  by  the  common  council,  does  not  make  it  binding 
upon  the  corporation  ;'  nor  is  the  corporation  estopped  from  set- 
ting up  a  want  of  authority  to  make  the  contract.* 

§  1225.  While  a  municipal  corporation  is  not  bound  by  the 
unauthorized  act  of  an  individual,  it  may  so  deal  with  third  per- 
sons as  to  justify  them  in  assuming  the  existence  of  authority  in 
another,  which  in  fact  had  never  been  given.*  So,  a  fact  once 
admitted  by  a  corporation  through  its  officers,  properly  acting 
within  the  scope  of  their  authority,  is  evidence  against  it,  and  the 
doctrine  of  estoppel  applies  thereto.'  Where  the  authorities  take 
legal  steps  to  widen  a  street,  appoint  commissioners  to  assess 
damages — this  is  an  admission  which  will  estop  them  from  claim- 
ing a  prior  dedication.'  So,  a  contract  made  by  a  committee 
appointed  by  the  city  council  to  act  for  it  will  bind  it,'  and  where 
the  chairman  of  a  committee  orders  a  sidewalk,  without  the  con- 
currence of  the  other  members,  the  cost  thereof  having  been 
assessed  by  the  council  afterwards,  is  a  ratification  of  such  act." 

R.  575;  Muhlman  v.   Ins.   Co.,  6  W.  *  Davies  v.   Mayor,  &c.,  93  N.  Y. 

Ya.   508;   Thompson  v.   Lambert,  44  250. 

Iowa.  239.  «  O'Leary    v.    Board,   93  N.    Y.  1 ; 

'  Hasbrouck  v.  Milwaukee,  21  Wis.  Curnoii  v.  Mayor,  79  N.  Y.  514;  Ross 

217.  V.  Baltimore,  51  Md.    256;  People   v. 

-  Backman  v.  Charleston,  43  N.  H.  Lowell,  9  Jlich.  144. 

125  ;  Miller  v.   Land  Co.,   66  X.  C.  '  Princeton  v.    Templeton,    71  111. 

503.  68. 

3  Brady  v.  Mayor.  20  N.  Y.  312.  ^  Burlington  v.  Dennison,  43   N.  J. 

4  City  Council  v.  Plank  R.   Co.,  81  L.  165. 

Ala.    75  ;    McPherson  v.    Foster,    43         ^  Brewster  v.  Davenport,    51   Iowa, 
Iowa,  48.  427. 


Corporations.  1369 

Municipal  corporations,  like  private  corporations  and  individualsj 
may  ratify  the  unauthorized  acts  of  its  agents  and  officers  within 
the  corporate  powers,  and  such  ratification  may  result  from  a 
failure  to  disavow  such  act,  or  by  acquiescence  after  knowledge 
of  all  the  material  facts.'  Generally,  municipal  corporations  are 
liable  for  the  torts  of  their  agents.*  For  an  exhaustive  examina- 
tion of.  authorities,  and  the  doctrine  of  res])ondeat  supeHor,  the 
learned  reader  is  referred  to  chapter  XXIlI,  volume  2,  of  the 
valuable  and  exhaustive  commentaries  of  Judge  Dillon  on  Munic- 
ipal Corporations. 

§  1226.  The  act  of  a  city  in  assuming  authority  to  control  the 
land  as  a  street,  renders  it  chargeable  with  the  same  duties,  and 
imposes  upon  it  the  same  liabilities,  as  if  it  had  been  lawfully 
laid  out,  and  it  is  estopped  from  questioning  that  it  was  a  lawful 
road  or  street.^  In  the  last  case  cited  it  was  held  that  it  was 
immaterial  whether  the  street  became  sucli  by  formal  acceptance 
and  user  by  the  public,  so  far  as  regards  the  duty  of  the  city  to 
keep  it  in  safe  condition.  It  follows  that  the  defendant,  by 
adopting  the  land  and  allowing  it  to  be  used  as  a  street,  holding 
out  to  the  public  that  it  was  such  street,  and  by  repairing  and 
improving  it  as  such,  was  boimd  to  exercise  the  same  degree  of 
care  as  if  it  had  been  laid  out  strictly  according  to  law,  and  it 
cannot  escape  liability  for  the  alleged  reason  that  it  has  no  control 
over  it,  and  the  land  belonged  to  the  State.*  The  laying  out, 
opening  and  improvement  of  roads,  and  the  erection  of  bridges, 
also  the  expending  of  work  and  labor  upon  them,  as  well  as  the 
raising  and  appropriation  of  money  for  those  purposes,  are  all 

'  Peterson  V.  Mayor,  17  K  Y.  453;  2  Sprague  v.  Tripp,  13  R  I.  38; 
Fisher  v.  School  Dist.,  4  Cush.  494;  How  v.  New  March,  12  Allen,  49; 
Keyser  v.  School  Dist.,  85  N.  H.  477;  Lewis  v.  Brooks,  121  Mass.  501;  Car- 
Hoy  t  V.  Thompson,  19  N.  Y.  207;  man  v.  Mayor,  14  Abb.  Pr.  301;  Lee 
Topsham  v.  Rogers,  42  Vt.  189;  Howe  v.  Sandy  Hill,  40  N.  Y.  442;  Luttrell 
V.  Kevlcr.  27  Conn.  538;  Marsh  v.  v.  Hazen,  3  Sneed,  20;  Hildreth  v. 
Fulton  Co.,  10  Wall.  670;  De  Grave  Lowell,  11  Gray,  345;  Dayton  v. 
V.  Monmonth,  4  C.  &  P.  Ill ;  Hayden  Pease,  4  Ohio  St.  80. 
T.  Madison,  7Me.  79;  Argenti  V.  San  ^  Houfe  v.  Fulton,  34  Wis.  608; 
Francisco,  16  Cal.  256;  Abbott'  v.  Stark  v.  Lancaster,  57  N.  H.  88;  Au- 
School  Dist.,  7  Me.  118;  People  v.  rora  v.  Colshire,  55  Ind.  484;  Phelps 
Swift,  31  Cal.  26;  Jordan  v.  School  v.  Mankota,  23  Minn.  276. 
Dist.,  38  Me.  164;  Ante,  §§  1044,  ^  gei-yell  v.  Cohoes,  75  N.  Y.  45; 
et  seq.                                      *  Mayor  v.  Sheffield,  4  Wall.  189. 


1370  The  Law  of  Estoppel. 

matters  within  the  scope  of  the  general  powers  of  the  town  and 
its  officers.  The  same  is  trne  also  of  the  adoption  or  ratification 
of  roads  already  laid  ont  and  opened,  and  of  bridges  already 
erected  and  in  nse.  When,  therefore,  a  town  or  its  officers  ratify 
and  adopt  a  bridge  already  bnilt  without  its  authority,  or  take 
possession  of  it  as  one  of  the  public  bridges  of  the  town  and  a 
part  of  its  highways,  or  by  other  acts  clearly  indicate  such  intent 
and  that  it  is  to  be  so  regarded  by  the  public,  the  town  may  be 
estopped  from  denying  that  such  is  its  true  character,  or  from 
affirming  that  it  had  no  lawful  riglit  to  adopt  or  maintain  it. 
And  the  same  estoppel  may  arise  where  the  town  or  its  officers 
take  unlawful  possession  of  land  as  a  highway,  and  expend  labor 
upon,  and  improve  and  hold  it  out  to  the  world  as  such.  The 
estoppel  in  such  cases  arises  from  the  acts  of  the  town  and  its 
officers,  performed  within  their  apparent  authority,  and  if  they, 
who  ought  to  know,  were  deceived  and  mistaken,  it  would  be 
most  inequitable  and  wrong  to  visit  the  consequences  upon  inno- 
cent third  persons,  who  relied  upon  and  were  justified  in  con- 
fiding in  their  action.'  Where  a  town  which,  by  its  officers, 
expends  upon  a  road  the  means  provided  by  law  to  make  and 
improve  highways,  in  order  to  make  them  safe  for  traveling,  pro- 
claims to  the  world  that  such  road  is  one  of  its  public  highways, 
it  is  thereby  estopped  from  denying  it  to  be  so,  in  an  action  for 
the  recovery  of  damages  for  injuries  sustained  through  the  neg- 
lect of  its  officers  to  keep  such  highway  in  repair.'' 

§  1227.  When  a  county  or  other  municipal  corporation  is 
authorized  by  statute  to  borrow  money  and  issue  bonds  for  the 
payment  of  money  thereof,  and  bonds  are  made  and  delivered, 
reciting  the  facts  which  show  them  to  have  been  regularly  issued, 
the  county  is  estopped  to  deny  their  regularity,  or  to  assert  that 
they  were  not  made  in  conformity  to  the  statute.'  If  municipal 
bonds  are  valid  by  the  constitution  and  laws  of  the  state,  as 
expounded  by  the  highest  judicial  authority,  whose  duty  it  was 
to  interpret  them,  they  cannot  be  made  invalid  by  a  subsequent 
judicial  interpretation  of  an  opposite  kind.*     Such  bonds  being 

'  Houfe  v.  Fulton,  34  "Wis.  608.  '  Moran  v.  Commissioners,  2  Black, 

3  Codner    v.    Bradford,    3  Chand.  722;  State  v.  Board,  27  Ohio  St.  96. 

(Wis  )  291 ;  Gilbert  V.  Manchester,  55  *  Mitchell  v.    Burlington,   4  Wall. 

N.  n.  ::D^.  270. 


Corporations.  1371 

payable  to  bearer  and  bearing  interest  coupons,  although  not  in 
the  form  of  promissory  notes  or  bills  of  exchange,  are  to  be 
regarded  as  commercial  securities,  and  the  holder  of  them  has  a 
full  title  against  one  who  has  taken  them  in  good  faith ;  the 
county  cannot  set  up  the  equities  which  might  have  been  avail- 
able against  the  original  payee.  The  power  to  issue  the  bonds 
being  shown,  the  corporation  as  against  hona  fide  holders 
for  value,  is  estopped  to  deny  that  the  power  was  properly 
executed.* 

§  1228.  The  fulfilment  of  the  conditions  or  restrictions  under 
which  a  body  corporate  is  empowered  to  act,  will  be  presumed 
until  it  is  disproved.  When  a  corporation  has  power  under  any 
circumstances  to  issue  negotiable  securities,  a  bona  fide  holder  has 
a  right  to  presume  that  they  were  issued  under  circumstances 
which  gave  the  requisite  authority,  and  they  are  no  more  liable  to 
be  impeached  for  any  irregularity  in  the  hands  of  such  a  holder 
than  any  other  commercial  paper.' 

§  1229.  The  leading  case  in  the  Supreme  Court  of  the  United 
States,  in  which  the  liability  of  municipal  and  public  corpora- 
tions, cities,  counties,  townships,  &c.,  was  decided,  is  that  of  Knox 

'  Rogers  V.  Burlington,  3  Wall.  654;  v.  Shores,  97  U.    S.  272;  Supervisors 

Cincinnati  v.    Morgan,   3  Wall.  275;  v.  Galbraith,    90  U.  S.  214;   Comm'rs 

Moran  v.    Comm'rs,    2  Black,    722;  v.    Block,    99    U.  S.    686;    Block  v. 

Cromwell  v.   Sac  Co.,  96  U.   S.    51;  Comm'rs,   99  U.  S.  686;  Supervisors 

Bates  V.  Hewitt,  20  Wis.  460;  Gorgier  v.  Sclienck.  5  Wall.  784;  Goodman  v. 

V.  Micrville,  3  B.  &  C.  45';  Brooks  v.  Simouds,  20    How.    343;   Murray  v. 

Mitchell,  9  M.  &  W.  15;  Goodwin  v.  Lardner,  2  Wall.  110;  Bank  v.  Kirby, 

Roberts,  L.  R.  lApp.  Cas.476;  Good-  108  Mass.  497;  Lay  v.  Wissman,  36 

man  V.  Harvey,  4  A.  &  E.  870;  Burn-  Iowa,  305;  Bank  v.  Green,  33  Iowa, 

ham  V.  Brown,  23  Me.  400;  Judge  v.  140;  Bank  v.  Watson,  42  N.  Y.  490 

Sherborne,   11   M.    &  W.  374;  U.  S.  Fowler  v.  Strickland,  107  JUass.  552 

V.    R.    R.,    91   U.    S.   72;    Miller  v.  Stoddard    v.    Kimball,   6  Cu.sh.  469 

Race,   1   Burr.   452;    White  v.    Ver-  Allaire  v.  Hartshorne,  21  N.  J.  L.  665 

mont,   &c.  Co.,   21    How.  575;  Mer-  Williams  v.  Smith,  2  Hill,  301;  Bank 

cer  Co.  V.  Hackett,  1  Wall.  83;   Gel-  v.   Chapin,  8   Met.    40;   Memphis  v. 

pecke  V.  Dubuque,  1  Wall.  175;  San  Brown,  20  Wall.  289;  Shirk  v.  Co.,  ^ 

Antonio  v.  Lane,  32  Tex.   405;  Lex-  Dillon,  209;  Mayor  v.  Ray,  19  Wall, 

ington  v.    Butler,  14  Wall.   282;  St.  468. 

Joseph  v.  Rogers,  16  Wall.  644;  Hum-         "  Gelpeckc  v.  Dubuque,  1  Wall.  203. 
boldt  V.  Long,  92  U.   S.   642;  Macon 


1372  The  Law  of  Estoppel. 

Connfy  v.  Aspinwall.'  The  question  arose  on  the  liability  of  the 
county  on  neii^otiablc  railway  aid  bonds,  issued  by  the  commis- 
sioners of  tiiat  county.  The  defense  set  up  was  want  of  power 
in  the  commissioners  to  issue  them  for  the  reason  tliat  some  of 
the  preliminary  statutory  requirements,  in  respect  to  notices  for 
the  election,  were  omitted.  It  was  not  controverted  that  notices 
were  not  given  ;  and  the  court  would  have  decided  against  the 
county  to  issue  the  bonds  were  it  not  for  other  matters  which  pre- 
vented the  county  from  maintaining  that  defense.  The  court  in 
that  case  held,  that  the  question  whether  or  not  the  election  was 
properly  held  and  a  majority"  of  the  votes  cast  in  favor  of  the 
issuance  of  the  bonds  was  a  matter  that  must  necessarily  be 
determined  by  the  county  commissioners  in  whom  the  power 
rested  to  call  the  election,  and  upon  their  determination  of  the 
result  either  to  issue  the  bonds  or  refuse  ;  and  when  that  question 
was  once  determined  it  could  not  again  be  determined  in  collateral 
actions  arising  in  actions  brought  to  compel  the  payment  of 
interest,  or  in  actions  on  the  bonds.  Tlie  court  in  assigning  its 
reasons  for  thus  holding,  speaking  through  Mr.  Justice  Nelson 
say  :  "  The  right  of  the  board  (of  county  commissioners)  is 
placed  upon  the  fact  that  a  majority  of  the  votes  had  been  cast 
in  favor  of  the  subscription  ;  and  to  have  acted  without  first 
ascertaining  it,  would  have  been  a  clear  violation  of  duty  ;  and 
the  ascertainment  of  the  fact  was  necessarily  left  to  the  inquiry 
and  judgment  of  the  board  itself,  as  no  other  tribunal  was 
provided  for  the  purpose.  The  board  was  one,,  from  its  organiza- 
tion and  general  duties,  tit  and  competent  to  be  the  depositor}'  of 
the  trust  tlius  confided  to  it.  The  persons  composing  it  were 
elected  by  the  county,  and  it  was  already  invested  with  the 
higliest  functions  concerning  its  general  police  and  liscal  interest. 
.  .  .  We  do  not  say,"  he  adds,  "  that  the  decision  of  the  board 
would  be  conclusive  in  a  direct  proceeding  to  inquire  into  the 
facts  previously  to  the  execution  of  the  power,  and  before  the 
rights  and  interests  of  third  parties  had  attached  ;  but  after  the 
authority  has  been  executed,  the  stock  subscribed,  and  the  bonds 
issued  and  in  the  hands  of  innocent  holders,  it  would  be  too  late, 
even  in  a  direct  proceeding,  to  call  it  in  question.  Much  less 
can  it  be  called  in  question  to  the  prejudice  of  a  honafide  holder 

'  Knox    County  v.    xVspinwall,    21  How.  538. 


Corporations. 


1373 


of  the  bonds  in  this  collateral  way."  And  it  has  been  extensively 
followed.* 


•  Moran  v.  County,  2  Black,  723; 
Supervisors  v.  Scheuck,  5  Wall.  772; 
Rogers  v.  Burlington,  3  AVall.  654; 
Woods  V.  Lawrence  Co.,  1  Blk.  38(); 
County  V.  Hackett,  1  Wall.  83;  Meyer 
V.  Muscatine,  1  Wall.  385;  Van 
Hostrup  V.  Madison  City,  1  Wall,  291; 
Converse  v.  Fort  Scott,  92  U.  S.  503; 
Bissell  V.  Jeffersonville,  24  How.  287; 
Gelpecke  v.  Dubuque,  1  Wall.  175; 
Courrty  v.  Amy,  18  Wall.  297;  St. 
Joseph  V.  Rogers,  IG  Wall.  644;  Lex- 
ington V.  Butler,  14  Wall.  284;  Grand 
Chute  V.  Winegar,  15  Wall.  371  ; 
Coloma  V.  Eaves,  92  U.  S.  484;  County 
V.  Post,  93  U.  S.  502;  County  v. 
Barnes,  94  U.  S.  70  ;  Comm'rs  v. 
Bolles,  94  U.  S.  104 ;  Comm  rs  v. 
Thayer,  94  U.  S.  Gol;  Paua  v.  Bowler, 
107  U.  S.  529;  County  of  Cass  v. 
Johnson,  95  U.  S.  360;  City  v.  Shields, 
62  Mo.  247;  Smith  v.  Clark  Co.,  54 
Mo.  58;  Daviess  Co.  v.  Huidekoper,  98 
U.  S.  98;  Nauvoo  v.  Ritter,  97  U.  S. 
389;  Venice  v.  Murdock,  92  U.  S.  494; 
Anthony  v.  Jasper  Co.,  101  U.  S,  693; 
W^arren  v.  Marcy,  97  U.  S.  96;  Mealey 
v.  St.  Clair  Co.  ,"3  Dill.  163;  Allen  v. 
Cameron,  3  Dill.  175;  W^yatt  v.  Green 
Bay,  1  Biss.  292;  Hackett  v.  Ottowa, 
99  V.  S.  86;  San  Antonio  v.  Mehaffy, 
96  U.  S.  312;  Comm'rs  v.  January,  94 
U.  S.  202;  East  Lincoln  v.  Davenport, 
94  U.  S.  801;  ]Moultrie  v.  Bank,  92  U. 
S.  631;  Cincinnati  v.  Morgan,  3  Wall. 
275;  Lyudc  v.  Winnebago.  16  Wall.  6; 
Kcunicott  V.  Supervisors,  16  Wall. 
452;  Marcy  v.  Oswego,  92  U.  S.  637; 
Humboldt  v.  Long,  92  U.  S.  642;  Cal- 
loway Co.  V.  Foster,  93  U.  S.  567;  San 
Antonio  v.  Barnes,  96  U.  S.  315;  Wil- 
kinson V.  Peru,  61  lud.  1;  Webb  v. 
Hern  Bay,  L.  R.  5  Q.  B.  642;  Imperial 
Land  Co.,  in  re,  L.  R.  11  Eq.  478; 
Black  V.  Cohen,  52  Ga.  621 ;  Shorter 


V.  Mayor,  &c.,  52  Ga.  621;  Lj^ons  v. 
Munson,  99  U.  S.  684;  Weyaywega  v. 
Ayling,  99  U.  S.  112;  Supervisors  v. 
Galbraith,  99  U.  S.  212;  Bargate  v. 
Shortridge,  5  Clark  H.  L.  297;  Wilson 
V.  Salamanca,  99  U.  S.  499;  Oileans  v. 
Piatt,  99  U.  S.  676;  Bank  v.  Turquand, 
6  El.  &,  Bl.  325;  Pompton  v.  Cooper 
Union,  101  U.  S.  196;  Scotland  v. 
Thomas,  94  U.  S.  682;  Schuyler  Co. 
V.  Thomas,  98  U.  S.  169;  Block  v. 
Commissioners,  99  U.  S.  686;  Dou- 
glas V.  Pike  Co.,  101  U.  S.  677;  Dar- 
lington v.  Jackson  Co.,  101  D.  S.  688; 
Buchanan  v.  Litchtield,  102  U.  S. 
278;  Davis  V.  Kendallville,  5Biss.  280; 
Foote  V.  Pike  Co.,  101  U.  S.  688; 
Roberts  v.  Bolles,  101  U.  S. .  119; 
Macon  Co.  v.  Shores,  97  U.  S.  272; 
Rock  Creek  v.  Strong,  96  U.  S.  271; 
Marsh  v.  Fulton  Co.,  10  Wall.  676; 
Bolton  V.  Board,  1  III.  App.  793;  Mur- 
ray V.  Lardner,  2  Wall.  110;  Quincy 
V.  Coke.  107  U.  S.  549;  Nicohus  v.  St. 
Clair,  3  Dill.  163;  Huidekoper  v.  Co.. 
3  Dill.  175;  Pollard  v.  Pleasant  Hill, 
3  Dill.  195:  Morgan  Co.  v.  Allen,  103 
U.  S.  498;  Tipton  Co.  v.  Locomotive 
Works,  103  U.  S.  523;  Harter  v. 
Kernochan,103U.  S.562;  Bank  v.  Con- 
cord, 50  Vt.  257;  Marshall  v.  Elgin,  3 
McCrary,  35;  Bank  v.  Seneca  Falls,  15 
F.  R.  783;  Singer  Co.  v.  Elizabeth,  42 
N.  J.  L.  249;  Menasha  v.  Hazard,  102 
U.  S.  81;  Ins.  Co.  v.  Elizabeth,  42  N. 
J.  L.  235;  Gause  v.  Clarksville,  1  Mc- 
Crary, 78;  San  Antonio  v.  Gould,  34 
Te.x.  49;  R.  R.  Co.  v.  Marion  Co.,  36 
Mo.  294;  Lewis  v.  Clarendon,  5  Dill. 
329;  Kirkbride  v.  Lafayette  Co.,  108 
U.  S.  208  ;  Howard  Co.  v.  Bank,  108 
U.  S.  314;  Bernards  v.  Steblnns,  109 
U.  S.  341;  Sherman  v.  Simonds,  109 
U.  S.  735;  Jonesboro  v.  II.  R.  Co.,  110 
U.  S.  192;  Bank  v.  Porter,  110  U.  S. 


1374  The  Law  of  Estoppel. 

§  1230.  The  doctrine  as  established  in  the  Supreme  Court  of 
the  United  States  in  regard  to  municipai  bonds,  is  tlins  stated  in 
one  of  the  numerous  cases  decided  by  that  court  in  whicli  such 
questions  have  repeatedly  been  decided.  "  Bonds  payable  to 
bearer,"  says  the  learned  justice  who  delivered  the  opinion  of  the 
court,*  "  issued  by  a  municipal  corporation  to  aid  in  the  construc- 
tion of  a  railroad,  if  issued  in  pursuance  of  a  power  conferred  by 
the  legislature,  are  valid  commercial  instruments;  but  if  issued 
by  such  a  corporation,  which  possessed  no  power  from  the  legis- 
lature to  grant  such  aid,  they  are  invalid,  even  in  the  hands  of 
innocent  holders.  Such  a  power  is  frequently  conferred  to  be 
exercised  in  a  special  numner,  or  subject  to  certain  regulations, 
conditions,  or  qualilications  ;  but  if  it  appears  tliat  the  bonds 
issued  show  by  their  recitals  that  the  power  was  exercised  in  the 
manner  required  by  the  legislature,  and  that  the  bonds  were  issued 
in  conformity  with  those  regulations  and  pursuant  to  those  con- 
ditions and  qualifications,  proof  that  any  or  all  of  those  recitals 
are  incorrect,  will  not  constitute  a  defense  to  the  corporation  in  a 
suit  on  the  bonds  or  coupons,  if  it  appears  that  it  was  the  sole 
province  of  the  municipal  officers  who  executed  the  bonds  to 
decide  whether  or  not  there  had  been  an  antecedent  compliance 
with  the  regulation,  condition  or  qualitication  which  is  alleged 
was  not  fullilled.  It  is  definitely  settled  by  this  court  that  mere 
irregularities  in  the  exercise  of  the  power  will  not  avail  as  a 
defense  against  an  innocent  holder  for  value,  and  that  the  only 
defense  open  against  such  a  holder  is  the  want  of  power  to  issue 
the  bonds.  The  most  important  inquiries  to  be  considered  are, 
what  will  estop  the  corporation  which  issued  them  to  set  up  in 
defense  a  non-conjpliance  with  antecedent  or  preliminary  condi- 
tions ;  and  it  is  these  inquiries  that  we  shall  seek  to  illustrate  by 
a  reference  to  the  decisions  of  the  courts  in  cases  which  have 
arisen  for  judgment," 

§  1231.  Among  the  limitations  or  attempted  limitations,  upon 
the  exercise  of  the  power  to  issue  bonds,  one  not  unfrequently 
provided  is,  that  the  amount  voted  or  issued  shall  not  exceed  a 

G08;  Ronede  v.  Jersey  City,  18  F.  R.      341. 

719;  Desmond  v.  Jelfersou,  19  F.  R.  '  St.  Joseph  Township  v.  Rogers, 

483;  Bernards  v.  Morrison,  109  Q.  S.      IG  Wall.  644, 


Corporations.  1375 

specified  proportion  of  the  taxable  property  of  the  municipality, 
or  such  a  sum  as  will  require  a  greater  levy  of  taxes  than  a  speci- 
fied rate  on  the  taxable  property  to  pay  the  annual  interest  on 
the  bonds.  The  effect  of  a  disregard  of  this  limitation  by  the 
officers  intrusted  by  the  statute  with  the  exercise  of  the  power, 
came,  for  the  first  time,  before  the  Supreme  Court,  in  a  case 
arising  under  the  legislation  of  Kansas.'  In  this  case  the  bonds 
wei-e  duly  executed,  and  contained  a  recital  of  the  act,  and  that 
they  were  issued  "  in  virtue  of  and  in  accordance  "  with  it,  and 
*'  in  pursuance  of  and  in  accordance  with  the  vote  of  three 
fifths  of  the  legal  voters  of  the  township,  at  an  election  to  be 
held  on  "  a  specified  day.  The  plaintiff  was  a  hona  fide  holder 
for  value,  without  notice.  The  defense  was  that  they  were  voted 
and  issued  at  one  time,  as  one  act,  and  in  payment  of  one  sub- 
scription in  excess  of  the  amount  authorized  by  the  statute.  The 
defense  was  held  unavailing.  The  case  was  considered  to  fall 
within  the  principle  of  the  previous  decisions.  Mr.  Justice 
Strong,  speaking  for  the  court,  after  stating  the  facts  as  we  have 
given  them,  observed  :  "  In  view  of  these  facts,  and  of  the 
decisions  heretofore  made  by  this  court,  tlie  question  cannot  be 
considered  an  open  one.  We  have  recently  reviewed  the  subject 
in  the  case  of  The  Town  of  Coloma  v.  Eaves  (supra)  and  reas- 
serted what  had  been  decided  before,  namely,  that  where  legis- 
lative authority  has  been  given  to  a  municipality  to  subscribe  for 
the  stock  of  a  railroad  company,  and  to  issue  municipal  bonds  in 
payment  of  the  subscription,  on  the  happening  of  some  precedent 
contnigency  of  facts,  and  where  it  may  be  gathered  from  the 
legislative  enactment  that  the  officers  or  persons  designated  to 
execute  the  bonds  were  invested  with  power  to  decide  whether 
the  contingency  had  happened,  or  whether  the  fact  existed  which 
was  a  necessary  condition  precedent  to  any  subscription  or  issue 
of  the  bonds,  their  decision  is  final  in  a  suit  by  the  bofia  fide 
holder  of  the  bonds  against  the  municipality,  and  a  recital  in  the 
bonds  that  the  requirements  of  the  legislative  act  had  been  com- 
plied with  is  conclusive.  And  this  is  more  emphatically  true 
when  the  fact  is  one  peculiarly  within  the  knowledge  of  the  per- 
sons to  whom  the  power  to  issue  the  bonds  has  been  conditionally 
granted.  .  These  cases  afford,  perhaps,  a  more  striking  illustration 

'  Marcy  v.  Oswego,  93  U.  S.  637. 


1376  The  L\^v  of  Estoppel. 

than  any  previously  decided  by  the  court,  that  the  purchaser  may 
implicitly  rely  upon  the  recitals  in  the  bonds  made  by  the  proper 
officers.  The  doctrine  which  seems  to  be  well  established,  is,  that 
as  to  all  matters  of  fact ;  such  as  the  ascertainment  of  a  compli- 
ance with  the  pre-requisites  necessary  to  be  completed  prior  to  the 
vesting  of  authority  or  jurisdiction  in  the  municipal  tribunal  to 
issue  the  bonds  ;  are  matters  peculiarly  within  the  province  of  the 
body  empowered  to  issue  such  bonds,  and  when  such  facts  are 
ascertained  and  settled  prior  to  the  issue  of  the  bonds ;  and  these 
facts  are  recited  in  the  bonds  that  these  matters  are  concluded 
and  that  no  testimony  is  admissible  to  contradict  such  recitals  in 
an  action  brought  upon  the  bonds  or  coupons.  The  determination 
of  such  municipal  tribunals  that  all  the  statutory  requirements 
have  been  complied  with,  being  a  matter  within  the  exclusive 
jurisdiction  of  such  bodies,  it  is  not  subject  to  collateral  attack 
any  more  than  a  judgment  of  any  court  of  exclusive  jurisdiction  ; 
and  the  only  remedy  is  in  a  direct  proceeding  or  attack  upon 
such  judgment.  But  where  there  is  a  w'ant  of  power  in  the 
municipality,  to  issue  such  bonds,  no  recital  or  ratification  will 
cure  such  defect  even  as  against  innocent  holders.' 

§  1232,  As  showing  the  precise  principles  that  have  been 
firmly  established  in  regard  to  this  class  of  instruments,  a  brief 
reference  may  be  made  to  some  of  the  most  recent  decisions  of 
the  Supreme  Court,  in  which  it  is  evident  that  the  whole  subject 
again  underwent  thorough  discussion.  In  Bank  v.  Township," 
"  It  is,  however,  contended,  that  by  the  settled  doctrines  of 
this  court,  the  township  is  estopped  by  the  recitals  of  the  bonds 
in  suit,  to  make  its  present  defense.  The  bonds,  upon  their  face, 
purport  to  have  been  issued  '  in  pursuance  of  the  provisions  of 
the  several  acts  of  the  general  assembly  of  the  State  of  Ohio,  and 
of  a  vote  of  the  qualified  electors  in  said  township  of  Porter, 
taken  in  pursuance  thereof.'  These  recitals,  counsel  argue, 
import  a  compliance,  in  all  respects,  with  the  law,  and,  therefore, 

'  Force  V.  Batavia,  61  111.  100;  Wil-  20   Wall.  655;   St.  Joseph  v.  Rogers, 

liams   V.    Roberts,  88   111.    13;   Sykes  16  Wall.  644;  Lippincott  v.  Pana,  93 

V.  Columbus,  65  Miss.  115;  Williamson  111.    24;    McPliersou    v.    Foster,    43 

V.  Keokuk,  44  Iowa,  88;  Aspiuwall  v.  Iowa,  48. 

County,    22     How.    364;     Marsh    v.  ^  110  U.  S.  608. 
County,  10  Wall.  676;  Ass'n  v.  Topeka, 


Corporations.  1377 

the  township  will  not  be  allowed,  againat  a  "bona  fide  holder  for 
value,  to  say  that  the  circumstances  did  not  exist  wliich  author- 
ized it  to  issue  the  bonds.  It  is  not  to  be  denied  that  there  are 
general  expressions  in  some  former  opinions  which,  apart  from 
their  special  facts,  would  seem  to  afford  support  to  this  proposi- 
tion in  the  general  terms  in  which  it  is  presented.  But  this  court 
said  in  Cohens  -y.  Yirginia,i  and  again  in  Carroll  v.  Carroll,"  that 
it  was  '  a  maxim  not  to  be  disregarded  that  general  expressions 
in  every  opinion,  are  to  be  taken  in  connection  with  the  case  in 
which  those  expressions  are  used.  If  they  go  beyond  the  case, 
they  may  be  respected,  but  ought  not  to  control  the  judgment  in 
a  subsequent  suit  when  the  very  point  is  presented  for  decision.' 
An  examination  of  the  cases,  in  wliich  those  general  expressions 
are  found,  will  show  that  the  court  has  never  intended  to  adjudge 
that  mere  recitals  by  the  officers  of  a  municipal  corporation  in 
bonds  issued  in  aid  of  a  railroad  corporation  precluded  an  inquiry, 
even  where  the  rights  of  a  honafide  liolder  were  involved,  as  to 
the  existence  of  legislative  authority  to  issue  them. 

"  A  reference  to  a  few  of  the  adjudged  cases  will  serve  to 
illustrate  the  rule  which  has  controlled  the  cases  involving  the 
validity  of  municipal  bonds.  In  Knox  Co.  v.  Aspinwaii,'  power 
was  given  to  county  commissioners  to  subscribe  stock  to  be  paid 
for  by  county  bonds,  in  aid  of  a  railroad  corporation,  the  power  to 
be  exercised  if  the  electors,  at  an  election  duly  called,  should 
approve  the  subscription.  It  was  adjudged  that  as  the  power 
existed,  and  since  the  statute  committed  to  the  board  of  commis- 
sioners authority  to  decide  whether  the  election  was  properly 
held,  and  whether  the  subscription  was  approved  by  a  majority 
of  the  electors,  the  recital  in  bonds,  executed  by  those  commis- 
sioners, that  they  were  issued  in  pui'suance  of  the  statute  giving 
the  power,  estopped  the  county  from  alleging  or  proving,  to  the 
]:»rejudice  of  a  honafide  holder,  that  requisite  notices  of  the  elec- 
tion had  not  been  given.  In  Bissell  v.  Jeffersonville,*  the  court 
found  that  there  was  power  to  issue  the  bonds,  and  that  after 
they  were  issued  and  delivered  to  the  railroad  company  it  was  too 
late,  as  against  a  hona  fide  holder,  to  call  in  question  the  deter- 
mination of   the  facts,  which  the  law  prescribed  as  the  basis  of 

1  6  Wheat.  399.  »  21  How.  542. 

» 16  IIow.  287.  *  24  How.  299. 

Vol.  L— 87 


137S  The  Law  of  Estoppel 

tlie  exercise  of  the  power  granted,  and  which  tlie  city  autliorities 
wei-e  authorized  and  required  to  determine  before  bonds  were 
issued. 

"  Probal)ly  the  fullest  statement  of  the  settled  doctrine  of  this 
court  is  found  in  Coloma  v.  Eaves.*  In  that  case  the  autliority 
to  make  the  subscription  was  made,  by  the  statute,  to  depend 
upon  the  result  of  the  submission  of  the  question  to  a  popular 
vote,  and  its  approval  by  a  majority  of  the  legal  votes  cast.  But 
whether  the  statute,  in  these  particulars,  was  complied  witii,  was 
left  to  the  decision  of  certain  persons  who  held  official  relations 
with  the  municipality  in  whose  behalf  the  proposed  eubscriptiou 
was  to  be  made.  It  was  in  reference  to  such  a  case  that  the  conrr 
said  :  '  When  legislative  authority  has  been  given  to  a  munici- 
pality, or  to  its  officers,  to  subscribe  to  the  stock  of  a  railroad 
company,  and  to  issue  municipal  bonds  in  payment,  but  only  on 
some  precedent  condition,  such  as  a  popular  vote  favoring  the 
subseripiion,  and  where  it  may  be  gathered  from  the  legislative 
enactment  that  the  officers  of  the  municipality  were  invested  with 
power  to  decide  wdiether  the  condition  precedent  has  been  com- 
plied with,  their  recital  that  it  has  been  made  in  the  bonds  issued 
by  them  and  held  by  a  bona Jide  purchaser  is  conclusive  of  the 
fact  and  binding  upon  the  municipality  ;  for  the  recital  is  itself  a 
decision  of  the  fact  by  the  appointed  tribunal.'  This  doctrine 
was  re-affirmed  in  Buclianan  v.  Litchfield,'  and  in  other  cases, 
and  we  perceive  no  just  ground  to  doubt  its  correctness,  or  to 
regard  it  as  now  open  to  question  in  this  court." 

'"  But  we  are  of  opinion  that  the  rule,  as  thus  stated  does  not 
support  the  position  which  counsel  for  plaintiff  in  error  take  in 
the  present  case.  Tlie  adjudged  eases,  examined  in  the  light  of 
their  special  circumstances,  show  that  the  facts  which  a  municipal 
corporation,  issuing  bonds  in  aid  of  the  construction  of  a  railroad, 
was  not  permitted,  against  a  honajide  holder,  to  question,  in  face 
of  a  recital  in  the  bonds  of  their  existence,  were  those  connected 
with  or  growing  out  of  the  discharge  of  the  ordinary  duties  of 
such  of  its  officers  as  were  invested  with  authority  to  execute 
them,  and  which  the  statute  conferring  the  power  made  it  tlieir 
duty  to  ascertain  and  determine  before  the  bonds  were  issued  ; 
not  merely  for  themselves,  as  the  ground  of  their  own  action  in 

1  92  U.  S."  49.  ""  102  U.  S.  290. 


Corporations.  1379 

issuing  the  bonds,  but  equallj^  as  authentic  and  final  evidence  of 
their  existence,  for  the  information  and  action  of  all  others  deal, 
ing  with  them  in  reference  to  it.  Such  is  not  the  case  before  us. 
Had  the  statutes  of  Ohio  conferred  upon  a  township  in  Delaware 
county  authority  to  make  a  subscription  to  the  stock  of  this  com- 
pany, upon  the  approval  of  the  voters  at  an  election  previously 
held,  then  a  recital  by  its  proper  officers,  such  as  is  found  in  the 
bonds  in  suit,  would  have  estopped  the  township  from  proving 
that  no  election  was  in  fact  held,  or  that  the  election  was  not 
called  and  conducted  in  tlie  mode  prescribed  by  law  ;  for,  in  such 
cases  it  would  be  clear  that  the  law  had  referred  to  the  officers  of 
the  townsliip,  not  only  the  ascertainment,  but  the  decision  of  the 
facts  involved  in  the  mode  of  exercising  the  power  granted.  Bnt 
in  this  case,  as  we  have  seen,  power  in  townships  to  subscribe  did 
not  come  into  existence,  that  is,  did  not  exist,  except  where  the 
county  commissioners  liad  not  been  authorized  to  make  a  sub- 
scription. Whether  they  had  not  been  so  authorized,  that  is, 
whether  the  question  of  subscription  had  or  not  been  submitted 
to  a  county  vote,  or  whether  the  county  commissioners  had  failed 
for  so  long  a  time  to  take  the  sense  or  the  people  as  to  show  that 
they  had  not,  within  tlie  meaning  of  tlie  law,  been  authorized  to 
make  a  subscription,  were  matters  with  which  the  trustees  of  the 
township,  in  the  discharge  of  their  ordinar}'  duties,  had  no  official 
connection,  and  wliicli  the  statute  had  not  committed  to  their 
final  determination.  Granting  that  the  recital  in  the  bonds  that 
they  were  issued  '  in  pursuance  of  the  provisions  of  tlie  several 
acts  of  the  general  assembly  of  Ohio,'  is  equivalent  to  an  express 
recital  that  the  county  commissioners  had  not  been  authorized  by 
a  vote  of  the  county  to  subscribe  to  the  stock  of  this  company, 
and  that,  consequently,  the  power  conferred  upon  the  township 
was  brougiit  into  existence,  still  it  is  the  recital  of  a  fact,  arising 
out  of  the  duties  of  county  officers,  and  which  the  purchaser  and 
all  others  must  be  presumed  to  know  did  not  belong  to  the  town- 
ship to  determine,  so  as  to  confer  or  create  power  which,  under 
the  law,  did  not  exist.  In  the  view  we  have  taken  of  this  case, 
McClure  V.  Oxford'  is  instructive.  That  was  a  case  of  munici\3al 
subscription  to  a  railroad  corporation.  The  act  conferiing  tlie 
authority  provided  that  it  should  take  effect  (and,  therefore,  should 

'  94  U.  S.  420. 


1380  The  Law  of  Estoppel. 

not  be  a  law  except)  from  and  after  its  publication  in  a  particular 
newspaper.     Thirty  days'   notice  of   the  election   was   required. 
But  the  election  was  held  within  thirty  days  from  the  publication 
in  the  paper  named  in  the  act.     The  bonds  recited  that  they 
were  issued  in  pursuance  of  the  statute,  describing  it  by  the  date 
of  its  passage,  not  the  date  of  its   publication  in  the   newspaper 
designated.     They  showed  upon  their  face  that  the  election  was 
held  April  8,  1872.     But  the  purchaser  was  held  bound  to  know 
tliat  the  act  was  not  in  fact  published  in   that   newspaper  until 
March  21,  1872 ;  that,  therefore,  it  did  not  become  a  law  until 
fiom  and  after  that  date.     He  was,  consequently,  charged  with 
knowledge  that  the  election  was  held  upon  insufHcient  notice. 
The  bonds  were,  for  these  reasons,  declared   to   be  not  binding 
upon  any  township.     The  publication  of  the  act,  plainly,  was  not 
a  matter  with  which  the  township  trustees,  as  such,  had  any  offi- 
cial connection.     It  was  not  made  their  duty  to  have  it  published. 
The  time  of  publication  would   not  necessarily  appear  upon  the 
township  records  ;  but  publication  in  a  named  newspaper  was,  as 
the  face  of  the  act  showed,  vital,  not  simply  to  the  exercise,  but 
to  the  v(*i-y  existence  of  the  power  to  subscribe.     We  may  repeat 
here  what  was  said  in  Anthony  v.  Jasper  Co.'  that  purchasers  of 
nninicipal  bonds  'are  charged    with   notice  of  the  laws  of  the 
kState  granting  power  to  make  the  bonds  the}'  find  on  the  market. 
This  we  have  always  held.     If  the  power  exists  in  the  municipal- 
it3\  the  hma  fide  holder  is   protected  against  mere  irregularities 
in  the  nuinncr  of  its  execution;  but  if  there  is  a  want  of  power, 
no  legal  liability  can   be  created.'     So  here.  Porter  toNvnship   is 
estopiK'd,  by  the  recitals  in  the  bonds,  from  saying  that  no  town- 
ship election  was  held,  or  that  it  was  not  called  and  conducted  in 
the  particular  mode  required  by  law\     Bnt  it  is  not  estopped  to 
show  that  it  was  without  legislative   authority  to  order  the  elec- 
tion of  August  30,  1851,  and   to  issue  the  bonds  iu  suit.     The 
question  of  legislative   authority  iu   a  municipal  corporation   to 
issue  bonds  in  aid  of  a  railroad  company  cannot  be  concluded  by 
mere  recitals;  but  the  power   existing,  the  municipality  may  be 
estopped  by  recitals  to  prove  irregularities  in  the  exercise  of  that 
power;  or,  w'hen  the  law  prescribes  conditions  upon  the  exercise 
of  the  power  granted,  aud  commits  to  the  officers  of  such  munic- 

'  101  U.  S.  G97. 


CoRPORATIOIJS.  1381 

ipality  the  determination  of  tlie  question  whether  those  condi- 
tions liave  been  performed,  the  corporation  will  also  be  estopped 
by  recitals  which  import  such  performance." 

§  1233.  The  well  settled  rule  may  therefore  be  thus  formu- 
lated where  a  corporation,  public  or  priv^ate,  has  lawful  power  to 
issue  negotiable  securities,  such  as  city,  county,  township  and 
other  bonds,  or  bonds  secured  by  deeds  of  trust  and  mortgages. 
A'  bona  fide  holder  for  value  has  the  right  to  presume  that  the 
power  was  properly  exercised,  and  is  not  bound  to  look  beyond 
tlie  question  of  its  existence.  Where  the  bonds  on  their  face 
recite  the  circumstances  which  bring  them  witliin  the  power,  the 
corporation  is  estopped  to  deny  the  truth  of  the  recitals.  Such 
corporation  cannot  take  advantage  of  any  irregularities  in  their 
issue  as  against  the  public,  who  were  justified  in  believing  Omnia 
rite  esse  acta.^  They  cannot  deny  wdiat  their  agents  have  affirmed 
in  order  to  place  them  on  the  market. 

§  1234.  Where  municipal  bonds  are  irregularly  or  defectively 
issued,  in  the  absence  of  constitutional  restrictions,  on  the  powers, 
a  State  legislature  may  enact  retrospective  statutes  to  validate 
such  bonds  and  such  subsequent  legislative  sanction  is  equivalent 
to  oi-iginal  authority  to  issue  such  bonds." 

•Bank  v.  Turquand,  6  Ell.  &  B.  Wilson  v.  Hardesty,   1   Md.  Ch.  66- 

248;    Kumford    Canal  Co.,  in   re,  L.  Shaw    v.     Norwalk,     5    Gray,    180: 

R.  24   Ch.  D.  85;  Webb  v.  Commrs.  Satlerlee   v.    Mathewson,   2   Pet.  380; 

L.  R.  5  Q.  B.  642;  Aspinwall  v.  Knox  Stanley  v.  Colt,  5  Wall.  119;   Wilkin- 

Co.,  21  How.  539;  Bank  v.  Augusta,  son  v.  Leland,  2  Pet.  627;   Croxall  v. 

49   Me.   505;    Zabriskie   v.  R.  R.,   23  Sheerd,  5  Wall.  268;  Leland  v.  Wilkin- 

How.    400;    Doming   v.    Houlton,    64  son,  10  Pet.  294;  Kcithsburg  v.  Frick, 

Me.  254;   Venice  v.  Murdock,    92   U.  34  111.  405;  Bridge  Co.  v.  Bridge  Co., 

8.  494;  St.  .Joseph  v.  Rogers,  16  AVall.  11  Pet.  420;  Kniipp  v.  Grant,  27  Wis. 

644;   Lane   v.    Embden,  72   Me.  354;  147;   Copes  v.  Charlestown,  10   Rich. 

Iluidekoper  V.  Buchanan  Co.,  3  Dill.  L.  491;  McMillen   v.  Boyles,  6   Iowa, 

175;   Orleans   v.    Piatt,  99   U.  S.  676;  304;   Gelpecke   v.  Dubuque,  1    Wall. 

ShurUell  v.    Wiscassett,  74  JMe.  130;  220;  People  v.  Mitchell,  35  N.  Y.  551; 

Coloma  V.  Eaves,  92  U.  S.  484;  Bucha-  Bass  v.  Columbus,  30  Ga.  845;  Bissell 

nan  v.  Litchfield,  102  U.  S.  278;  Davis  v.  Jellersonville,  24  How.  287;  Camp- 

V.  Kendall viile,  5  Biss.  280;  Nicholay  bell  v.  Kenosha,  5  Wall.  194;  Steines 

V.  St.  Clair,  3  Dill.  163;  Humboldt  v.  v.    County,    48    Mo.    1G7;    Black  v. 

Long,    93     U.     S.    642;     Pollard    v.  Cohen,  52   Ga.  621;   Duanesburgh  v. 

Pleasant  Hill,  3    Dill.    195;   Sherman  Jenkins,    57  K  Y.  177;   Kimball  v. 

Co.  V.  Simonds,  109  U.  S.  735.  Rosendale,  42  Wis.  407;  S.  C,  24  Am. 

"Thompson  v.  Lee  Co.,  3  Wall.  337;  R.  421;  Ritchie  v.  County,  23  Wall 


1382  The  Law  of  Estoppel. 

§  1235.  Where  authority  is  given  to  a  city  to  take  stock  in  a 
n^ih-oad,  provided  that  none  should  be  taken  "  unless  on  the  peti- 
tion of  two-thirds  of  the  citizens,"  this  proviso  will  be  presumed 
to  have  been  complied  with,  where  the  bonds  show,  on  their  face, 
that  tiiey  were  issued  in  virtue  of  an  ordinance  of  the  council 
of  the  city  making  the  subscription,  the  bonds  being  in  the  hands 
of  honajide  holders  for  value.'  Thus  where  the  common  council 
of  a  city  were  authorized  by  a  statute  to  issue  bonds  of  the  city 
in  aid  of  a  railroad,  on  the  petition  of  three-fourths  of  the  legal 
voters,  the  common  council  decided  that  such  proportion  had 
petitioned  and  issued  the  bonds  to  the  plaintiffs.  Duly  certified 
copies  of  their  proceedings  were  exhibited  to  the  plaintiffs  at  the 
time  they  received  the  bonds  ;  and  upon  the  bonds  themselves  it 
was  recited  that  three-fourths  of  the  legal  voters  had  petitioned 
for  the  subscription.  Held,  that  the  bondholders  and  their 
assigns  had  the  right  to  rely  upon  such  recitals  as  importing  abso- 
lute verity,  and  the  city  was  estopped  to  deny  that  three-fourths 
of  the  legal  voters  had  petitioned.''  "Where  the  nnmieipality  has 
repeatedly  recognized  the  validity  of  the  bonds  issued  by  them, 
by  paying  them  out,  levying  taxes  and  paying  interest  on  them 
for  a  series  of  years,  it  is  estopped  from  claiming  that  the  issue  is 
illegal.'  And  the  same  principle  applies  in  the  case  of  coupon 
bonds  in  the  hands  of  honajide  holders ;  the  city  is  estopped  in 
an  action  upon  the  coupon  to  deny  the  regularity  of  tiieir  issue.* 
So,  on  a  petition  for  a  peremptory  mandamus,  to  compel  the 
trustees  of  a  township  to  pay  the  overdue  interest  on  certain 
bonds,  issued  by  said  trustees  to  a  railroad  company,  incorporated 
by  an  Ohio  statute,  and  indorsed  by  the  petitioners  :  Held,  that  the 
defendants  were  estopped  to  aver,  as  to  third  persons  holding 
such  securities  in  good  faith,  without  notice,  that  the  act  of  incor- 
poration of  said  railroad  company  was  abrogated  by  the  new  con- 
stitution of  the  state,  and  if  not  superseded,  that  the  proceedings 
preliminary  to  the  issuing  of  the  bonds  were  not  comj)lied  with, 

67;   Bradley  v    County,  65   Mo.  638;  ''  Bissell  v.  Jeffersonville,   24  IIow- 

St.  Joseph  V.  Rogers,  16  Wall.  666.  ard,  287. 

'  Van  Ilostrup  v.  Madi-son,  1  Wall.  "  Keitbsburg  v.   Frick,  34   111.  405; 

291;  Venice  V.  Murdock,  92  U.  S.  494;  R.  R.  Co.  v.  Commissioners,   18  Kas. 

Mason  v.    Shawneetown,  77   111.  533;  169. 

Converserv.  Fort  Scott,  92  U.  S.  503;  *  Clark  v.  ZanesTille,    10   Wis.  136; 

R.  R.  Co.  V.  Sparta,  77  111.  505.  Supervisors  v.  Hubbard,    45   111.  139. 


Corporations.  1383 

as  to  notice  of  elections,  &c.'  The  bonds  of  a  municipal  corpor- 
ation, issued  in  aid  of  a  railroad,  were  publicly  sold,  with  a 
knowledge  of  all  the  inhabitants  of  the  city.  Many  of  them  had 
been  deposited  with  the  State  Treasurer  by  banks  as  security  for 
their  circulation,  one  of  which  located  in  the  city,  had  for  several 
years  published  in  a  newspaper  there  a  quarterly  statement, 
embracing  such  fact.  The  city  had  paid  the  semi-annual  interest 
on  the  bonds,  down  to  to  a  certain  date,  and  the  payments  had 
been  reported  at  the  annual  city  meetings.  Ileld^  under  these 
circumstances  that  the  corporation  was  equitably  estopped  from 
denying  the  validity  of  the  bonds,  against  parties  who  held  them 
in  good  faith,  and  that  individual  citizens  and  tax-payers  who  had 
acquiesced  in  the  conduct  of  the  cit}-,  and  taken  no  measures  to 
prevent  the  sale  of  the  bonds,  or  the  payment  of  interest,  were 
equally  estopped  from  denying  their  validity,  so  far  as  their  indi- 
vidual rights  were  concerned,'  So,  levying  a  tax  for  and  making 
part  payment  upon  a  judgment,  against  a  municipal  corporation 
will  estop  it  from  appealing  from  it." 

§  1236.  A  provision  in  a  city  charter  restraining  them  from 
borrowing  money  for  any  public  purpose,  does  not  estop  it  from 
issuing  bonds  in  payment  for  property  purchased.*  The  seal  of  a 
municipal  corporation  attached  to  a  contract,  does  not  estop  the 
corporation  from  inquiring  into  the  power  of  its  ofBcers  to  make 
it.''  The  legislature  enacted  that  a  city  might  abandon  its  char- 
ter and  become  incorporated  under  the  general  law,  by  a  vote  of 
two-thirds  of  its  council,  entered  in  the  journal  ;  a  copy  thereof, 
under  the  corporate  seal,  to  be  tiled  in  a  certain  office.  Which 
was  done  by  tlie  defendant,  as  required,  except  that  it  was  not 
sealed,  the  city  having  no  seal.  The  city  had  been  incorporated 
for  twenty  years,  and  had  never  had  any  seal.  Ileld^  that  the 
provision  for  tlie  sealing  was  merely  directory  ;  and  that  the  city 
was  estopped   from   raising  the  objection."     Mere  non -action  of 

'  State  V.   Van   Home,   7  Ohio  St.  Ann.  230. 

327;  State    v.    Trustees,   8    Ohio    St.  ■■  People  v.  Brennan,  89  Barb.  522; 

394.  Hitchcock   v.    Galveston,    96    U.    S. 

"^  Society  v.  New  London.  2:»  Conn.  341. 

174;  Keithsbuvg  V.  Frick,  34  111.  405;  '^  Leavenworth  v.  Rankin,  2   Kaus. 

Mayher  v.  Chicago,  38  111.  266;  Shoe-  357. 

maker  v.  Goshen,  14  Ohio  St.  569.  «  Brennan  v.  Weatherford,  53  Tex. 

-»  Daird   v.    Baton  Rouge,   27  La.  330;  S.  C,  87  Am.  R.  758. 


1384  The  Law  of  Estoppel. 

the  officers  of  a  inui)ici|5al  corporation  to  assert  a  right  will  not 
work  an  estoppel.  There  must  be  some  act  done,  influencing  the 
act  of  another,  which  renders  it  ine(|uitable  to  permit  the  corpo- 
ration to  stultify  itself.'  But  a  municipal  corporation  is  not  estop- 
ped from  maintaining  an  action  upon  a  treasurer's  bond,  by  accept- 
ing a  report  of  an  auditing  committee  who  had  approved  his 
accounts  by  making  a  report  founded  thereon  to  the  legislature.' 
Where  a  bond  reciting  that  a  party  has  been  appointed  for  a  par- 
ticular office,  and  that  he  should  ])ay  over  all  moneys  collected, 
tfec,  the  sureties  are  estopped  frorri  denying  such  a  fact  in  an 
action  on  the  bond,  and  their  liability  is  co-extensive  with  the 
princijials.' 

§  1237.  Where  a  city,  by  its  ordinances,  has  released  all  its 
rights  in  certain  premises  to  the  owner,  and  the  owner's  grantees 
occupy  and  improve  the  same  on  the  faith  of  such  ordinances,  the 
city  is  estopped  to  claim  the  land.*  Where  money  is  raised  by  a 
town  in  pursuance  of  a  statute,  for  the  purpose  of  paying  the 
interest  due  on  bonds  issued  by  such  town,  and  the  money  is 
placed  in  the  hands  of  the  supervisor,  who  is  required  by  statute 
to  pay  it  over  to  the  proper  bondholders,  such  supervisor  will  be 
liable  to  an  action  by  a  bondholder  for  his  share,  and  will  also  be 
estopped  from  alleging  that  the  bonds  are  not  legal. ^ 

§  123S.  Where  a  corporation  have  the  power  to  do  an  act  they 
may  be  estopped  from  objecting  that  the  form  they  adopted  was 
not  the  exact  mode  prescriljed  in  the  charter  ;  but  where  the 
question  is  one  of  power,  they  cannot  be  deariied  estopped  to  deny 
that  they  have  done  what  they  never  could  by  legal  possibility 
have  done."  But  if  the  agents  of  a  railroad  company  represent 
the  company  to  the  public  as  conuiion  carriers  to  a  place  beyond 
the  limits  of  their  own  road,  in  such  a  manner  and  for  such  a  time 
that  the  corporators  may  be  presumed  to  know  and  assent  to  it, 
the  company  will  be  estopped  to  deny  it,  although  no  actual 
arrangements  with  connecting  lines  exist,  although  the  company 
may  have  had  no  special  authority  by  their  charter  to  make  such 

'  Logan  Co.  v.  Lincoln,  81    111.  156.  *  Grant  v.  Davenport,  18  Iowa,  179; 

»  R.  R.  Co.  V.  Elwell,  8  Allen,  371.      R.  R.  Co.  v.  Brownsville,  45  Tex.  88. 
3  Hoboken  v.  Harrison,  30  JN\  J.  L  ^  Ross  v.  Curtis,  31  N.  Y.  C06. 

73.  «Hoodv.  R.  R.  Co.,  23   Conn.   502; 

McPherson  v.  Foster,  43  Iowa,  48. 


Corporations.  1385 

contracts,  and  conld  perhaps  by  proper  proceedings,  have  been 
restrained  from  so  doing.  They  cannot  plead  such  want  of  author- 
ity against  persons  contracting  with  their  agents,  empowered  so 
to  contract  by  express  act  of  the  company  or  their  directors,  or  by 
implication  arising  from  a  mutual  arrangement  amongst  all  the 
carriers,  between  the  place  where  the  goods  are  received  and  the 
place  where  they  are  delivered,  and  although  the  agent  making 
such  a  contract  had  no  authority  from  the  company  to  do  so,  3'et 
if  for  several  years  before  and  after  the  transaction  sued  upon,  he 
made  similar  contracts  to  deliver  goods  at  various  places  beyond 
the  line  of  the  company's  road,  their  assent  may  be  presumed, 
and  they  will  be  estopped  from  denying  their  authority.  Thus, 
a  railroad  company,  contracted  to  carry  sixteen  car-loads  of  cattle 
from  St.  Louis  to  Phihidelphia,  nothing  was  said  about  a  change 
of  cars  or  other  companies.  It  was  held^  tliat  unless  forbidden  by 
its  charter,  it  miglit  make  a  contract  to  carry  cattle  over  connect- 
ing lines,  and  it  would  be  liable  in  all  respects  upon  other  lines  as 
on  its  own.  The  public  has  a  right  to  assume,  that  the  contract- 
ing company  has  made  all  arrangements  necessary  to  the  fulfill- 
ment of  the  obligations  it  has  assumed.' 

§  1239.  In  regard  to  this  class  of  written  instruments,  they 
may  best  be  described  in  the  language  of  Judge  Miller,  of  the 
United  States  Supreme  Court.  "  As  civilization  has  advanced 
and  commerce  extended,  new  and  artificial  modes  of  doing  business 
have  superseded  the  exchanges  by  barter  and  otherwise,  which 
pi-evail  while  society  is  in  its  early  and  simple  stages.  The  inven- 
trion  of  the  bill  of  exchange  is  a  familiar  illustration  of  the  fact, 
if  more  modern,  but  still  not  recent  invention,  of  like  character, 
for  the  transfer,  without  the  somewhat  cumbersome,  and  often 

'  R.  R.  Co.  V.  McCarthy,  96  U.    S.  Pontius,  19   Ohio   St.  321;  Buffett  v. 

267;  R.  R.  Co.  v.  Pratt,  22  Wall.  123;  R.  R.  Co.,  40  N.  Y.  168;  MuchineCo". 

Railway  Co.  v.  Blake,  7  H.  &  N.  987;  v.  R:  R.  Co.,  70  Mo.  672;  Maghee  v. 

Buxton  V.  R.  R.,  L.  R.  9  Q.    B.  549;  R.  R.  Co.  45  N.  Y.  514;  Fertal  v.  R. 

Weed  V.  R.  R.,  19  Wend.  534;  Knight  R.    Co.,    109  Mass.    398;  Hudson    v. 

V.  R.  R.,  56  Me.  240;  Buffit  v.  R.  R.  Swan,  83  K  Y.  552:  Hill  Co.  v.  R.  R. 

Co.,  36  Barb.   420;  Perkins  v.  R.  R.  Co.,  104  Mass.  122;  Milnor  v.    R.   R. 

Co.,  47  Me.  573;  Bissell  v.  R.  R.  Co.,  Co.,  53  N.  Y.  363;  Root  v.  R.  R.  Co., 

22  N.  Y.  258;  Navigation  Co.  v.  Dan-  45  N.  Y.  524;  McCarthy  v.  Eggers.lO 

dridge,  8  G.  &  J.  248;  Burtis  v.  Rail-  Ben.  688. 
way  Co.,  24  N.  Y.  269;  R.    R.  Co.  v. 


1386  The   Law  of  Estoppel. 

impossible  operation  of  actual  deliveiy  of  articles  of  personal 
property,  is  the  indorsement  or  assignment  of  bills  of  ladins^  and 
■warehouse  receipts.  Instruments  of  this  kind  are  sui  generis. 
From  long  use  in  trade,  they  have  come  to  have  among  com- 
mercial men,  a  well  understood  meaning.  And  the  indorsement 
or  assignment  of  them  as  absolutely  transfers  the  general  property 
of  the  goods  and  chattels  therein  named  as  would  a  bill  of  sale.' 
In  the  hands  of  the  holder  of  it,  it  is  evidence  of  ownership, 
general  or  special,  of  the  property  mentioned  in  it,  and  of  the 
right  to  receive  said  property  at  the  place  of  delivery.  Notwith- 
standing, it  is  designed  to  pass  from  hand  to  hand,  with  or  with- 
out indorsement,  and  it  is  eflicacions  for  its  ordinary  purposes  in 
the  hands  of  the  holder,  it  is  not  a  negotiable  instrument  or 
obligation  in  the  sense  that  a  bill  of  exchange  or  a  promissory 
note  is.  Its  transfer  does  not  preclude,  as  in  those  cases,  all 
inquiry  into  the  transaction  in  which  it  originated,  because  it 
comes  into  the  hands  of  persons  who  have  innocently  paid  value 
for  it.  The  doctrine  of  bona  fide  purchasers  applies  to  it  in  a 
limited  sense.  It  is  an  instrument  of  a  two-fold  character.  It  is 
at  once  a  receipt  and  a  contract.  In  the  former  character  it  is  an 
acknowledgment  of  the  receipt  of  property  on  his  vessel  by  the 
owner  of  the  vessel.  In  the  latter  it  is  a  contract  to  carry  and 
deliver.  If  no  goods  are  actually  received,  there  can  be  no  valid 
contract  to  carry  or  to  deliver.  Before  the  power  to  make  and 
deliver  a  bill  of  lading  could  arise,  some  person  must  have 
shipped  goods,  only  then  could  there  be  a  shippei',  and  only  then 
could  there  be  goods  shipped.  It  is  not  necessary  that  the  goods 
shall  be  actually  loaded.  If  they  come  within  the  custody,  and 
control  of  the  parties  for  the  purpose  of  shipment,  the  contract 
of  carriage  commences,  and  the  evidence  of  it  in  the  form  of  a  bill 
of  lading  will  be  binding — without  such  delivery  there  is  no  con- 
tract of  carrying,  and  the  agents  have  no  authority  to  make  one — 
they  have  no  authority  to  sell  bills  of  lading,  nor  power  to  execute 
them  and  go  out  and  sell  them  to  purchasers.  Ko  man  has  a  light 
to  buy  such  a  bill  of  lading,  who  has  not  delivered  them,  the 
goods,  to  be  shipped.'   Neither  the  master  of  a  vessel  nor  its  ship- 

'  Austin  V.    Craven,  5  Taunt.  167;      v.  Su^-dam,  7  N.  Y.  357;  Gibson  v. 
White  v.  Wilkes,  12  East,  614  ;   Con-     Bank,  11  Ohio  S.  311. 
rad  v.  Ins.  Co.,  1  Pet.  386;   Gardiner         *  Freeman,   Schooner   v.    Bucking- 


Corporations.  1387 

ping  agents  can,  by  giving  a  bill  of  lading  for  goods  not  received 
"for  shipment,  bind  the  vessel  or  its  owner,  and  such  bill  is  void 
even  in  the  hands  of  a  transferree  iii  good  faith  for  value.'  In  a 
recent  case  in  Kansas,  it  was  held : — Where  the  agent  of  a  railroad 
corporation,  which  is  engaged  as  a  common  carrier,  has  authority 
to  receive  grain  for  shipment  over  its  road,  and  issue  in  the  name 
of  the  corporation  a  single  bill  of  lading  for  each  consignment 
received,  on  September  4th,  received  23,000  pounds  of  wheat  for 
transportation  to  St.  Louis,  Mo.,  and  at  the  instance  of  the  shipper, 
issues  in  the  name  of  the  corporation  two  original  bills  of  lading, 
of  the  same  terms,  tenor  and  effect,  for  the  wheat,  and  each  of 
which  shows  the  receipt  of  23,000  pounds  of  wheat  and  its  con- 
signment to  the  order  of  the  shipper  at  St.  Louis,  Mo.,  and  the 
shipper  on  September  5th,  negotiates  one  of  the  bills  to  W.,  who, 
as  holder  of  such  bill  of  lading  receives  all  the  wheat  forwarded 
to  St.  Louis,  and  on  September  6th,  negotiates  and  transfers  by 
indorsement  in  writing  the  other  bill  of  lading  to  a  bank,  and  the 
bank,  knowing  the  custom  of  the  railroad  corporation  to  issue  only 
one  bill  of  lading  for  each  shipment,  and  relying  wholly  on  the 
bill  for  its  security,  accepted  the  same,  advanced  money  thereon 
of  less  amount  than  the  value  of  the  wheat  called  for  in  good 
faith  and  in  the  re<2;ular  course  of  business  and  havino;  no  knowl- 
edge  of  the  issuance  of  the  two  original  bills  of  lading ;  that  the 
railway  corporation  is  estopped  by  its  statement  and  promise  in 
the  bill  of  lading  to  deny  that  it  has  received  the  grain  mentioned 
therein,  and  is  liable  to  the  indorsee  and  assignee  for  its  advances 
made  in  good  faith  on  the  bill  of  lading.^ 

§  1240.  Warehouse  receipts  are  written  statements  that  the 
party  named  in  the  receipt  has  deposited  or  left  for  storage  cer- 
tain personal  property  which  the  receiptor  acknowledges  to  be  in 
his  possession.  When  a  warehouseman  issues  such  a  receipt,  he 
puts  it  in  the  power  of  the  holder  to  treat  with  the  public  on  the 
faith  of  it.  He  enables  him  to  say,  and  to  induce  others  to 
believe,  that  he  has  certain  property  which  he  can  sell  or  pledge 
for  a  loan  of  money.     If  the  warehouseman  gives  to  the  party 

ham,  18  How.  182;  Grant  v.  Norway,  Mass.  99  ;  Pollard  v.  Vinton,  105  U. 

10  C.  B.  665;  Coleman  v.  Riches,  16  S.  7. 

C.  B.  104  ;   Hubbersty  v.    Ward,   8  '  Pollard  v.  Vinton,  105  U.  S.  7. 

Exchq.    330;  Walter  V.   Brewer,    111  '■' Bank  v.  R  R. ,       Kas. 


1338  The  Law  of  Estoppel. 

who  holds  snch  receipt  a  false  credit,  he  will  not  be  suffered  to 
contradict  the  statement  which  he  has  made  in  the  receipt,  so  as 
to  injure  a  party  who  lias  been  misled  by  it.  That  is  within  the 
most  exact  definition  of  estoppel.  If  A.  gives  B.  a  warehouse 
receij^t  for  articles  which  he  has  never  received,  a  third  party 
treating  with  B.  on  the  faith  of  the  statement  contained  in  the 
receipt  will  hold  A.  for  the  goods  or  their  value.  It  is  of  no  con- 
sequence what  the  transaction  may  be  between  the  original  parties, 
whether  the  receipt  is  a  security  for  a  loan  or  entirely  false.' 

§  12-11.  A  railroad  companj'^,  having  procured  an  assessment 
of  the  value  of  lands  to  be  taken  and  appropriated  to  the  use  of 
their  road,  by  persons  mutually  chosen  by  them  and  the  ostensible 
owner,  are  estopped  from  denying  his  title  on  the  ground  that 
his  sale  to  them  was  fraudulent  and  void  as  to  creditors,  without 
showing  that  they  were  creditors,  that  the  title  had  failed,  and 
that  they  had  been  evicted  by  some  of  the  creditors,  or  that  they 
had  acquired  a  paramount  title.'  After  land  is  condemned  for 
the  use  of  a  railway  company,  the  adjudication  can  no  more 
be  impeached  by  any  collateral  proceedings,  or  by  evidence,  than 
the  judgment  of  any  other  court  of  competent  jurisdiction.' 
Where  the  owner  of  land  condemned  for  the  use  of  a  railway 
company  is  also  an  officer  of  the  company,  whose  duty  it  is  to  see 
tliat  the  proceedings  are  correctlj''  conducted,  he  cannot  be  heard 
to  object  to  the  title  acquired  by  the  company,  on  the  ground  of 
defects  in  the  proceedings  which  he  ought  to  have  prevented.' 
After  a  railroad  has  lawfully  taken  lands  under  their  charter,  and 
the  damages  have  been  duly  assessed  by  the  commissioners,  and, 
npon  appeal,  the  assessment  has  been  confirmed  and  the  amount 
received  by  the  owner,  he  is  estopped  from  setting  up  any  claim 
against  the  company's  possession,  while  the  lands  are  used  for  any 
of  the  ])urposes  authorized  by  their  charter.^  So,  where  a  party 
acquiesces  for  a  short  period  of  time,  whereby  the  company  may 
infer  that  he  intends  waiving  present  payment,  it  concludes  the 

•  McNiel  V.  nni,  1   Woolwortb,  97;  "  R.  VI.  v.  Seeger,  4  "Wis.  268. 

Kubl   V.   Mayor,  &c.,  23   N.  J.  E.  84;  3  Hamilton  v.  R  R.,  1  ]Md.  Ch.  107; 

Can-  V.  Miner,  42  111.179;  People  v.  R.  R.  Co.  v.  Potter.  42  Vt.  265. 

Reeder,    25   N.    Y.    ;^02;    Knights   v.  *  R.  R.  Co.  v.  Potter,  42  Vt.  265. 

Wifieu,  L.  R.  5  Q.  B.  660;  Griswold  v.  *  Dodge  v.  Burues,  6  Wis.  514. 
Haven,  25  N.  Y.  595. 


Corporations.  1389 

owner  from  af terwai'ds  stopping  the  company  in  the  progress  of 
their  work  or  the  running  of  the  road.'  Wliere  the  legal  title  of 
streets  in  cities  is  vested  in  the  municipal  corporation,  and  a  cor- 
poration has  been  authorized  by  competent  legal  authorities  to 
construct  railroads  in  or  upon  the  streets  of  such  cities,  courts 
cannot  interfere  to  prevent  their  construction.*  Where  one  gives 
a  railroad  verbal  permission  to  use  his  land,  he  is  estopped  from 
bringing  a  suit  for  damages  for  such  use  as  long  as  the  permis- 
sion is  unrevoked.'  A  subscriber  for  stock  in  a  corporation  with 
an  unconditional  charter,  will  not  be  permitted,  in  a  suit  against 
Inm  by  the  corporation  for  the  recovery  of  installments  on  his 
stock  subscription,  to  inquire  into  and  contest  the  validity  of  its 
charter.^ 

§  1242.  Fraudulent  misrepresentations  relative  to  the  past 
earnings  of  a  railroad,  the  pecuniary  condition  of  the  railroad 
company,  and  the  value  of  its  stock,  made  by  the  officers  or 
agents  of  such  company  while  acting  for  it,  in  obtaining  subscrip- 
tions to  its  stock,  must  be  deemed  to  be  made  by  them  in  the 
execution  of  their  agency,  and  the  company  will  be  held  liable 
therefor.^  On  the  same  principle  where  the  general  agent  of  an 
insurance  company  makes  false  statements  to  a  local  agent  in 
regard  to  tlie  condition  of  the  company,  and  the  latter,  believing 
such  statements,  repeats  them  to  a  third  party,  thereby  inducing 
him  to  take  out  a  policy  of  insurance  in  the  company,  the  insured 
may  set  up  the  misrepresentations  as  a  defense  to  an  action  by 
the  company  on  his  premium  note.° 

A  sale  of  property  belonging  to  a  railroad  company  made  by 
the  president,  without  authority,  will  be  deemed  ratified,  if  the 
fact  that  such  sale  had  been  made  was  communicated  to  the  board 
of  directors,  and  openly  talked  of  at  one  of  their  meetings,  or  by 

'  McAulay  v.  R.  R.,  '63  Vt.  311.  Bank,   1   Md.  Cli.  407;  R.  R.  Co.  v. 

"Milburn  v.    R.  R.,  12  Iowa,  246;  Coiiybeare,    9  H.  L.  725;   Taylor  v. 

R.  R.  Co.  V.  Brownsville,  45  Tex.  88.  Alston,   11   M.  &  W.   415;  Thorn  v. 

3  Miller  V.  R.  R.,  6  Hill,  6.  Biglaud,  8  Exchq.   725;  Kennedy  v. 

*  Woods  V.  R.  R.,  32  Ga.  273;  R.  R.  Ry.  Co.,  L.  R.  2  Q.  B.  580;  National 

Co.  V.  Kyle.  64  N.  Y.  185.  &c.  Co.  v.  Drew,  2  Macq.  103. 

5  Waldo  V.    R.    R.,  14  Wis.    575;  «  Ins.  Co.   v.  Humble,  100  Pa.  St 

Booth  V.  Bank,  50  N.  Y.  396,  Stevens  495. 
V.  R.  R.  Co.,  1  Gray,  277;  Albm  v. 


1390  The  Law  of  Estoppel. 

long  acquiescence,  and  they  did  nothing  to  disaffirm  it.'  So  a 
satisfaction  piece  of  a  judgment  in  favor  of  a  corporation,  which 
shows  upon  its  face  that  it  was  executed  by  its  president  in  his 
official  capacity  is  binding  on  the  corporation,  although  not  exe- 
cuted in  the  name  of  or  under  the  seal  of  the  corporation."  A 
person  who  has  given  a  note  and  mortgage  to  a  raihoad  company 
in  payment  for  its  stock,  is  estopped  from  setting  up,  in  a  suit 
thereon,  that  such  transaction  is  a  fraud  upon  cash  paying  sub- 
scribers. He  cannot  set  up  his  own  fraud  to  defeat  his  own  con- 
tract, when  the  party  defrauded  chooses  to  acquiesce  in  it.' 

§  ]243.  A  railroad  company,  against  which  a  judgment  for 
land  damages  has  been  rendered,  was  sold  jinder  a  mortgage,  and 
a  new  company  organized.  It  was  held  that  the  new  company 
entering  upon  the  judgment  creditors  land,  and  running  trains 
was  estopped  to  deny  his  claiui  and  was  liable  on  the  judgment.* 
A  carrier  who  contracts  with  a  corporation  to  carry  goods  for  it, 
cannot  defend  an  action  for  daniages  resulting  from  his  negli- 
gence in  transporting  such  goods,  on  the  ground  that  the  corpo- 
ration cannot  lawfully  acquire  title  in  tliem.'' 

§  1244.  A  foreign  corporatioTi  is  estopped  from  availing 
itself  of  the  statute  of  limitations  as  a  defense  to  an  action  in  the 
courts  of  the  states.*  TV  hen  a  foreign  corporation,  by  its  officers 
comes  within  the  limits  of  any  state  it  becomes  subject  to  the 
Jaws  of  that  state,  and  to  the  process  of  the  courts;  and  where 
such  a  corporation  by  its  officers  is  guilty  of  a  wrong,  or  commits 
a  trespass  within  such  state,  the  corporation  is  estopped  from  set- 
ting up  its  existence  uiider  a  foreign  government  as  a  means  by 
which  to  escape  the  consequences  of  its  illegal  acts.' 

liy  coming  into  a  State  to  transact  business,  it  comes  in  under 
the  provisions  of  the  statute,  as  to  license ;  it  cannot  agree 
to  conditions  as  to  the  price  of  admission  and  after  having  been 
admitted  turn  around  and  disi)Ute  theni  ;  it  waives  all  question  as 
to  their  validity,  and  by  coming  into  the  State  is  esto})ped  from 

'  Bank  v.  Loan  &  T.,  10  Wis.  0^<J;         "  Piiumcr  v.  It.  R,  18  Wis.  135. 
Chouteau  v.  Allen,  70  Mo.  290.  '  Bank  v.  R.   li.,  17  Wis.  372. 

'  Booth  V.  Bank,  SON.  Y.  390.  «  Mai  lory  v.    K.   K.   Co.,  3   Keyes, 

3  Clark  V.  Farriugton,  11  Wis.  306;      N.  Y.  354. 
R.  K.  Co.  V.  Bush,  43  Conn.  80.  "i  People  v.    R.   R.    Co.,   48  Barb. 

478. 


Corporations. 


1391 


raising  any  question  as  to  the  validity  of  the  statute.'  In  an 
action  against  such  a  corporation  Avhere  an  attachment  issues  on 
the  ground  that  it  is  a  foreign  corporation,  by  vohmtarily  appear- 
ing and  giving  bond  in  its  corporate  name,  it  is  ec^tupped  to  deny 
its  corporate  existence." 

§  12J:5.  The  existence  of  corporations,  whether  public  or  pri- 
vate, wliich  arc  apparently  acting  under  color  of  law,  cannot  be 
questioned  collaterally  by  private  parties  ;  nor  can  acts,  which 
might  be  a  valid  cause  for  the  forfeiture  of  their  corporate  rights 
or  charters,  be  taken  advantage  of  by  parties  other  than  the  sov- 
ereign power  which  has  created  them,'  or  in  any  other  mode  than 
by  a  direct  proceeding  for  that  purpose  against  the  corporation, 
so  that  it  may  have  an  opportunity  to  answer.  And  the  govern- 
ment creating  the  corporation  can  alone  institute  such  a  proceed- 
ing, since  it  may  waive  a  broken  condition  of  a  compact  made 
with  it,  as  well  as  an  individual.* 


'  People  V.  Ins.  Co.,  93  N.  Y.  312; 
Vose  V.  Cockcioft.  4i  N.  Y.  4.15;  Em- 
buiy  V.  Connor,  3  N.  Y.  511;  Sherman 
V.  McKeon,  38  N.  Y.  267;  Phyle  v. 
Eimer,  45  N.  Y.  103. 

2  Hudson  V.  R.  R.  Co.,  53  Mo.  525; 
Seaton  v.  R.  R.  Co.,  55  Mo.  416;  Smith 
V.  R.  R.  Co.,  55  Mo.  526. 

3  St.  Louis  V.  Shields,  62  Mo.  247; 
Association  v.  Chester,  55  Cal.  99;  Re- 
fining Co.  V.  Elevator  Co.,  10  Mo. 
App.  401;  Geneva  v.  Cole.  61  111.  397; 
R.  R.  Co.  V.  Orton,  6  Sawyer,  157; 
Canal  Co.  v.  Pinkham,  1  Idaho  (N.  S.) 
790;  R.  R.  Co.  V.  Johnson,  49  Mich. 
148;  Montgomery  v.  Merrill,  18  Mich. 
343;  Patterson  v.  Association,  63  Ga. 
373;  Baker  v.  Neff,  73  Ind.  68;  Keene 
V.  Van  Rcuth,  48  Md.  184;  Whitney 
V.  Robinson,  53  Wis.  309. 

■*  Rex  V.  Stevenson,  Yelv.  190;  Rex 
V.  Carmathen,  1  W.  Bl.  187;  Rex  v. 
Amery,  2  T.  R.  515;  Rex  v.  Pasmore, 
3  T.  R.  244;  Terrett  v.  Taylor,  9 
Cranch,  51  ;  People  v.  Society,  1 
Paine  C.  C.  653;  Bank  v.  North,  4 
Johns.  Ch.  379;  Slee  v.  Bloom,  5 
Johns.  Ch.   366;  Society  v.   Hills,   6 


Cowen,  23;  Thompson  v.  R.  R.  Co., 
Sandf.  Ch.  652;  Caryl  v.  McElrath,  3 
Sandf.  176;  R.  R.  Co.  v.  McConahy, 
16  S.  &  R.  145;  Commonwealth  v. 
Ins.  Co.,  5  Mass.  230;  Glass  Co.  v. 
Dewey,  16  Mass.  94;  Glass  Co.  v. 
Langdon,24  Pick. 52;  Canal  Co.  v. New- 
comb,  7  Met.  276;  Knowlton  v.  Ack- 
ley,  8  Cush.  95;  Bridge  Co.  v.  River 
Co.,  7  Conn.  46;  Pearce  v.  Olney,  20 
Conn.  544;  River  Co.  v.  Bailey,  24  Vt. 
465;  Banks  v.  Poitiaux,  3  Rand.  142; 
Crump  V.  Mining  Co.,  7  Gratt.  352; 
Canal  Co.  v.  Railroad  Co.,  4  G.  &  J. 
1;  Bank  v.  Bank,  10  G.  &  J.  346; 
University  v.  Williams,  9  G.  &.  J. 
365;  Hamilton  v.  R.  R.  Co.,  1  Md. 
Ch.  107;  Bank  v.  Dawson,  13  La. 
497;  State  v.  Gaslight  Co.,  2  Rob.  La. 
529;  Webb  v.  Moler,  8  Ohio,  548; 
Bank  v.  Renick,  15  Ohio,  322;  :lohn- 
son  V.  Bentley,  16  Ohio,  97 ;  Myers  v. 
Bank,  20  Ohio,  283;  Bank  v.  Trimble, 
6  B.  Mon.  599;  Harrison  v.  R.  R. 
Co.,  9  B.  Mon.  476;  Bank  v.  Bank,  10 
Mo.  123;  Young  v.  Harrison,  6  Ga. 
130;  R.  R.  Co.  V.  Tipton,  5  Ala.  805; 
Duke  v.  Nav.  Co.,  16  Ala.  372;  Stata 


1392 


The  Law  of  Estoppel. 


§  1246.  The  question  of  forfeitnre  of  a  charter  cannot  be  con- 
sidered in  a  collateral  proceeding.  Even  when  the  terms  of  a 
cliarter  are  that  the  corporation  shall  be  dissolved  on  the  non- 
performance of  a  condition,  the  mere  failure  to  perform  it  is  not 
ipso  facto  a  dissolution,  but  a  judgment  of  ouster  is  necessary. 
In  the  absence  of  a  statute  enabling  a  private  party  to  take 
advantage  of  a  forfeiture  of  a  charter,  only  the  State  can  do  it. 
It  is  for  the  State  to  decide  whether  the  forfeiture  shall  be 
enforced  or  not.  An  individual  cannot  assert  it  until  it  has  been 
enforced  through  a  proceeding  on  behalf  of  the  State  for  that 
purpose,  A  private  party  is  estopped  from  taking  advantage  of 
a  forfeiture,  resulting  from  irregularities  from  the  charter  in  the 
organization  of  the  company,  and  courts  are  bound  to  regard  it  as 
a  corporation,  so  far  as  third  persons  are  concerned,  until  it  is 
dissolved  by  judicial  proceedings.     The  question  whether  it  has 


V.  Biiiige  Co.,  18  Ala.  678;  Smith  v. 
Plank  Road  Co.,  30  Ala.  650;  Bayless 
V.  Orne,  Freeui.  (Miss.)  173;  Smith  v. 
R.  R.  Co..  U  Miss.  179;  Bank  v. 
Archer,  14  Miss.  151;  State  v.  Savan- 
nah, R.  M.  Charlt.  342;  Buncomhe  T. 
Co.  V.  McCarson,  1  D.  tk  B.  300;  John 
V.  Bank,  a  Blackf.  307;  l^iorce  v. 
Somerswoith,  10  N.  11.  3T5;  State  v. 
Turup.  Co.,  15  N.  H.  163;  Cahill  v. 
Ins.  Co.,  2  Doug.  (Mich.)  141;  Wil- 
liiims  V.  Bank,  6  111.067;  Bohannon  v. 
Binns,  31  Mi.ss.  355;  R.  R.  Co.  v.  Erie, 
27  Pa.  St.  380;  Commonwealth  v.'Bifdge 
Co.,  20  Pa.  St.  185;  Heard  v.  Talbot, 
7  Gray,  130;  Brookville  T.  Co.  v.  Mc- 
Carty,  8  Ind.  393;  State  v.  R.  R.  Co., 
20  Ark.  495:  Dyer  v.  Walker.  40  Pa. 
St.  157;  R.  R.  Co.  V.  R.  R.  Co.,  34 
Vt.  57;  Cowell  v.  Springs  Co.,  100  U. 
S.  55;  Moseby  v.  Burrow,  53  'I'ex. 
39(j;  Falls,  Ac.  Co.  v.  Kettridge.  5 
Sawyer,  44;  Cliurch  v.  Lovett,  1  Hall, 
198;  Eagle  Works  v.  Cburcbill,  2 
Bcisw.  166;  Camp  v.  Woodman,  3 
Me.  404;  Hamtranck  v.  Bank,  3  Mo. 
169;  Savings  lust.  v.  Board,  «kc.,  75 
Mo.  408;  R.  R.  Co.  v.  Grubb,  83  Pa. 
St.  36;  Ruilway  Co.  v.  People,  73  111. 


541;  Gill  V.  God,  &c.,  7  Bu.sh,  636; 
Hughes  V.  Bank,  5  Litt.  45;  R.  R.  Co. 
v.  Cary,  36  iM.  Y.  75;  Cochnm  v.  Ar- 
nold, 58  Pa.  St.  399,  Smith  v.  Sheehy, 

13  Wall.  358;  Wight  v.  R.  R.  Co.,  16 
B.  Mon.  5;  Water  Co.  v.  San  Fran- 
cisco, 33  Cal.  434;  Abbott  v.  Aspin- 
•wall.  36  Barb.  203;  Bridge  Co.  v.  Coal 
Co.,  4Ru\vle,  9;  Gla.ssCo.  v.  Doolcy,  16 
Mass.  103;  Searsburgh.  «&c.  Co.  v.  Cut- 
ler, 6  Vt.  315;  R.  R.  Co.  v.  R.  R.  Co., 

14  Ga.  327;  Merker  v.  Steel  Co.,  84  111. 
276;  Stale  V.  Carr,  5  N.  11.  367;  Peo- 
ple V.  Faruliam,  35  111.  563;  N.  J.  &c. 
Co.  V.  Commissioners,  39  N.  J.  L.  38; 
President,  &c.  v.  Thompson,  20  111. 
100;  Stale  v.  Woodward,  89  Ind.  110; 
Rice  V.  R.  R.  Co.,  21  111.  93;  Horn  v. 
Hottel.  89  Ind.  349;  Goodrich  v.  Rey- 
nolds, 31  ill.  490;  Day  v.  Stetson,  8 
Me.  373;  Nav.  Co.  v.  Neal,  3  Hawks, 
530  ;  R.  R.  Co.  V.:-  Buck,  08  Me.  80; 
Keyser  v.  Hitz,  2  :Mackey.  473:  Ass. 
V.  Im.s.  Co.,  70  Ala.  130;  Imhodeu  v. 
^Mining  Co.,  70  Ga.  86;  Logan  v.  R. 
R.  Co..  90  Ind.  553;  Hasselman  v. 
Mortgage  Co.,  97  Ind.  365;  Planter's 
Line  v.  Waggeuer,  71  Ala.  581. 


Corporation's.  1393 

or  has  not,  cannot  be  raised  or  examined  collaterally,  or  in 
another  than  a  direct  proceeding  to  obtain  a  decree  of  forfeiture. 
And  a  defendant  in  an  action  brought  by  a  corporation  is  not 
allowed  to  set  up  in  his  defense  the  charge  of  irregularities,  neg- 
lect, abuse,  &c.,  which  warrant  a  forfeiture  of  the  charter  or  cor- 
porate powers.  And,  until  a  forfeiture  has  been  judicially 
declared,  a  corporation  cannot  be  estopped  from  prosecuting  its 
rights  of  action  against  its  members.  This  rule  applies  in  cases 
where  actions  are  brought  to  recover  subscriptions  or  assessments 
on  the  capital  stock,  in  actions  brought  to  recover  debts  due  from 
individuals,  and  to  foreclose  mortgages  given  to  building  associa- 
tions, and  no  stockholder  can  avail  himself  of  such  an  objection 
on  a  suit  brought  against  him  by  a  corporation,  nor  can  it  be 
impeached  for  fraud. 

§  1247.  A  corporation  cannot  be  organized  nor  act  without 
the  limits  of  the  jurisdiction  creating  it.  All  votes  and  proceed- 
ings of  persons  professing  to  act  in  the  capacity  of  corporators, 
when  assembled  beyond  the  bounds  of  the  State  granting  the 
charter,  are  void,  but  a  subscriber  to  stock  of  a  corpoi-ation  thus 
illegallj'  organized,  who  has  given  his  note  for  tiie  amount  sub- 
scribed, is,  by  his  acts,  estopped  from  denying  the  legal  existence 
of  the  corporation,  wlien  sued  by  a  hona  fide  indorsee  for  value 
before  maturity.'  And  where  a  party  holding  stock  transfers  it, 
thus  recognizing  its  validity,  it  estops  him,  on  a  suit  for  the  orig- 
inal subscription,  from  setting  up  that  it  is  invalid  by  reason  of 
the  non  payment  of  the  sums  necessary  to  give  it  validity,  at  the 
time  of  making  the  subscription.'  So,  one  to  whom  stock  has 
been  transferred  in  pledge  or  as  collateral  security  for  money 
loaned,  and  who  appears  on  the  books  of  the  corporation  as  the 
owner  of  the  stock,  is  liable  as  a  stockholder  for  the  benefit  of 
creditors.^  lie  is  estopped  from  denying  his  liability  b}'  volun- 
tarily holding  nimself  out  to  the  public  as  the  ownier  of  the  stock, 

1  Camp  V.  Bj-rne,  41  Mo.  525;  Hotel  Colston,  44  Md.  349;   Crease   v,  Bab- 
Co.  V.  West,  13  La.  345.  cock,  10  I\Iet.  525;  Wheelock  v.  Kost, 

•^  Everhart  v.  R.  R.  Co.,  28  Pa.  St.  77  111.  296;  Hale  v.  Walker,  31  Iowa. 

339.  344;    Empire   Bank,  iu   re,  18   N.  Y. 

'^  Pullman   v.  Upton,  96   U.  S.  328;  199;  Palmer  v.  Lawrence,  3  Sand.  161; 

Adderly  v.  Storm,  6  Hill,  624;  Roose-  Brower  v.  Hill,  1  Saudf.  629;  iSTaviga- 

velt  V.  Brown,  11  N.  Y.  148;  Bank  v.  tion  Co.  a\  Weed,  17  Barb.  378;  Hawley 

Burnbam,  11  Cush.  183-  Magruder  v.  v.  Upton,   102  U.    S.  314. 
Vol.  1—88 


1394  The  Law  of  Estoppel. 

and  hid  denial  of  ownership  is  inconsistent  with  the  representa- 
tions he  has  made :  by  taking  the  legal  title,  he  has  released  the 
former  owner,  and,  after  having  taken  the*  apparent  ownership, 
and  thus  becoming  entitled  to  receive  dividends,  vote  at  elections, 
and  enjo}'  all  the  privileges  of  ownership,  it  would  be  inequitable 
to  allow  him  to  refuse  the  responsibilities  of  a  stockholder.' 
Thus,  defendants,  Avho  were  sued  as  stockholders  by  creditors  of 
the  corporation,  liad  been  appointed  its  financial  agents;  their 
names  had  been  entered  on  its  books  as  stockholders;  they  held 
and  retained  an  absolute  and  unconditional  certificate  for  sixty 
thousand  dollars  of  stock,  which  was  a  majority  of  tiie  authorized 
stock,  and  on  which  they  voted  at  one  annual  election,  thereby 
electing  the  directors  and  other  officers  of  the  company,  which 
gave  them  the  whole  control  and  management  of  its  affairs. 
Although  such  certificate  was,  by  a  resolution  of  the  directors,  to 
be  held  "  in  trust,"  or  "  in  escrow,"  as  expressed  in  an  entry  on 
the  stock  book,  still  defendants  were  estopped  to  deny  that  they 
were  stockholders,  and  that  they  were  liable  as  such,  both  to  the 
corpoi-ation  and  its  creditors.^  A  subscriber  to  stock  in  a  corpo- 
ration, who  attends  a  meeting  of  the  stockholders  and  votes  on 
the  business  of  the  company,  is  estopped  from  denying  the  valid- 
ity of  his  subscription/  And  by  active  exertions  to  obtain 
municipal  subscription  on  the  faith  of  a  subscription  certified  to 
have  been  made  b}^  the  parties  so  acting,  arc  not  merely  evidence 
of  an  original  subscription,  but  are  conclusive,  amounting  to  an 
estoppel  upon  the  parties  against  denying  it.  So,  if  he  has  paid 
installments  of  assessments,  he  cannot  deny  its  legal  existence,  in 
an  action  against  him  for  the  balance  of  his  assessment,  or  in  a 
collateral  way  question  the  regularity  of  its  organization.  In  the 
absence  of  fraud,  any  one  subscribing  to  stock  in  a  corporation  is 
estopped  to  deny  its  existence.*  If  a  party  admits  that  lie  is  a 
subscriber  to  stock  in  a  corporation,  and  on  the  faith  of  such 
admission  others  have  acted  for  his  benefit,  he  will  be  estopped 

'  Bank  v.  Case,  99  U.  S.  628.  App.  290;  Hays  v.  R.  R.  Co.,  38  Pa. 

"  Griswold  v.  Seligman,  72  Mo.  110.  St.  31. 

3R.    R.    Co.  V.  Brown,  2')   Pa.  St.  •»  Sup's  v.  Plank  Road  Co.,  10  lud. 

lo6;   R.  R.  Co.  V.   Cliaudler,  13   :\lLt.  4G;  Turnpike   Co.  v.  Beams,  10   Ind. 

311;  Turubull  v.  Paysou  95  U.  S.  418;  003. 
St.  Charles,  tic.  Co.  v.  Britton,  2  I\lo. 


Corporations.  1395 

trom  denying  that  lie  did  in  fact  subscribe.'  To  warrant  holding 
a  person  estopped  from  disputing  the  existence  of  a  corporation 
on  the  ground  that. he  has  cooperated  in  its  organization  and 
action,  the  acts  shown  must  be  unmistakably  corporate  acts." 
A  subscriber  to  stock  in  a  corporation,  who  accepted  the  charter, 
has  taken  part  in  the  business  of  the  company,  attended  its  meet- 
ings, and  acted  in  the  position  of  director,  is  estopped  from 
setting  up  fraud  in  the  procuring  of  the  subscriptions  of  stock, 
when  garnisheed  as  a  subscriber  in  an  action  against  the  corpora- 
tion.' 

§  1248.  A  subscriber  to  stock  in  a  corporation  admits  the  legal 
existence  of  it,  and  when  called  upon  to  respond  to  a  liability  as 
such,  cannot  question  the  existence  of  such  corporation  or  its 
capacity  to  appear  on  the  record.*  A  stockholder  who  has  acted 
as  director,  or  a  party  who  has  contracted  a  debt  to  a  corporation, 
is  esto])ped  from  setting  up  as  a  defense  an  irregularity  which 
might  show  that  the  corporation  never  existed,  or  that  it  had 
incurred  a  forfeiture.  So,  one  who  has  openly  avowed  himself  a 
stockholder,  or  a  registered  member,  and  as  such  has  taken  part  in 
its  manngement,  cannot  be  allowed  as  against  third  persons  to 
prove  that  the  corporation  was  never  lawfully  created.  But  this 
rule  that  a  parry  contracting  with  a  corporation  as  such,  is  estop- 
ped from  denying  its  corporate  existence  at  the  time  of  the  con- 
tract, does  not  apply  to  a  suit  brought  on  a  subscription  made  with 
a  view  to  the  organization  of  a  corporation.     In  an  action  by  a 

»  Graff  V.  R.  R..  31  Pa.  St.  489;  Ry.  89:   Iron  Co.  v.  Rutherford,  18  N.  J. 

Co.  V.  Liicey,  3  Y.  ct  .1.  79.  L.    105;   Ricbanlson  v.    Iron    Co.,    5 

-  Frcdeubury   v.  Cliuroh,  37  Midi.  Blacki.  54G;  Soeiaty  v.  Perry,  6  IST.  H. 

470.  164,  Harrison  v.  Muskingum,  &c.  Co., 

=5Smitliv.  ITeideneeker,  39  Mo.  lo7;  4  Dlackf.  26?;   Low   v.  R.  R.,  45   X. 

Rutz  V.  Manfg  Co.,  3  111.  xVpp.  83.  H.  370;  Church  v.  Church,  5  W.  &  S. 

*  Mfg.  V.  Davis,  14  John.  238,  Plauk  215-    Lighte  v.  lus.  Co.,   5  W.  &  S. 

R.  Co.  v.  Rust,  5  How.  Pr.  390;  Ham-  215;  Ins.  Co.  v.  Osgood,  1  Duer.  707; 

trauck  V.  Bank,  2  ilo.  169;  Hughes  v.  Kenedy  v.  Cotton.  28  Barb.  59;   Bank 

Bank.  5  Lltt.  47:  Leesburgh  T.  Co.  V.  v.    Rogers.   30   Barb.    491:    Bank    v. 

Cutler,  3  Vt.  315;  Nav'u  Co.  v.  JN'eal,  Donnell,  41   Barb.   571;   Hubbard   v. 

3  Hawks.   52<J;   Institute  v.  Harding,  Chappell,    14    Ind.    601;     Acorne   v. 

11  Cush.    285:   Turnpike   Co.    v.  Mc-  Miuiiig  Co. ,  11  How.  Pr.  27;  Machine 

Carty,  8  Ind.  392;  Williams  V.  Cheney,  Co.  v.  Snow,  32   Iowa.  433;   Bank  v. 

3  Gray,  220;   Topping   v.  Bickford,  4  Brown,  9   Abb.  Pr.  218;   R.  R.  Co.  V. 

Allen,  120,  Jones  v.  Foundry,  14  Ind.  Evansville,  15  Ind.  395. 


1396 


The  Law  of  Estoppel. 


corporation  to  recover  a  sum  of  money  loaned  to  the  defendant, 
the  latter  having  had  the  beneiit  of  the  contract  of  loan,  cannot 
be  permitted  to  avail  himself  of  the  defense  that  the  corporation 
plaintiff  luul  no  authority,  express  or  implied,  by  the  terms  of  its 
charter,  to  make  the  loan.'  When  it  is  a  simple  question  of 
capacity  to  contract,  arising  either  on  a  question  of  regularity  of 
organization,  or  of  powers  conferred  by  the  charter,  a  party  who 
has  had  the  benefit  of  the  contract  is  estopped  from  questioning 
its  validity  in  an  action  founded  upon  it.  Even  where  there  has 
been  a  general  restriction  in  the  charter,  an  isolated  case  of  excess 
beyond  the  limit  presci'ibed,  has  been  protected,  and  the  contract 
held  binding,  when  the  general  practice  of  the  corporation  had 
been  in  sti'ict  conformity  witli  its  charter.  So  one  who  contracts 
with  a  coi'poi'ation  acting  under  an  amended  charter  cannot  com- 
])l;un  that  the  amendment  has  not  been  properly  accepted  by  the 
Corporation  or  of  its  invalidity.'  Where  one  conti'acts  with  what 
purports  to  be  a  corporation,  he  is  estopped  from  denying  its 
existence  at  the  date  of  the  contract,^  and  if  he  relies  upon  a  sub- 
sequent dissolution  he  must  allege  and  prove  how  it  ceased  to 
exist."     Contracting   with   a   corporation  in  its  corporate  name, 


'  Bank  v.  Mathews,  98  U.  S.  621; 
Ay  res  v.  Banking  Co..  L:  R.  3  P.  C. 
548;  Mining  Co.  v.  Bank,  96  U.  S. 
G40;  R  R.  Co.  V.  Lewis,  53  Iowa,  101; 
O'llare  v.  Bank,  77  Pa.  St.  96;  Sicanl 
V.  Ry.  Co.,  15  Blatchf.  525;  Lime  Co. 
V.  Green.  L.  R.  7  C.  P.  43;  Bank  v. 
Case,  99  U.  S.  633;  Mining  Co.  v. 
Bank.  1  Col.  531;  Bly  v.  Bank,  79  Pa. 
Si.  453;  Bank  v.  Gilliland.  72  Mo.  77; 
Hydraulic  Co.  v.  R.  W.,  29  Oliio  St. 
343;  ilonsum  v.  Rogers,  40  Pa.  St. 
190;  Allen  v.  Bank,  23  Ohio  St.  97; 
Grant  v.  Co.,  80  Pa.  St.  453;  Union  v. 
Yonnt.  101  U.  S.  356;  Elder  v.  Bank, 
12  Kas.  238;  Crowell  v.  Springs  Co., 
14  Pet.  122;  Little  v.  O'Brien.  9  Mas.s. 
423;  Mott  v.  Trust  Co.,  19  Barb.  508; 
Runyon  v.  Coster,  14  Pet.  122;  Sav. 
Insl.  V.  Board,  75  Mo  408;  Br.nk  v. 
Collins.  27  Conn.  142;  Bank  v.  Dim- 
luoek,  24  N.  J.  E.  26;  Bank  v.  Ford, 
27  Conn.  282;  Snyder  v.  Studdebaker, 


19  Ind.  462;  Navigation  Co.  v.  Weed, 
17  Barb.  378;  Amerman  v.  Willes, 
24  N.  J.  E.  13;  Norlbampton  Co.'s 
Ai)i)ea],  30  Pa.  St.  305;  Grammar 
School  V.  Burt,  11  Vt.  632;  Bridge  Co. 
V.  Sills.  2  C.  &  P.  371;  Tarbell  v. 
Paige,  24  III.  46;  ilayor  v.  Tice,  4 
Bing.  75;  Brown  v.  Coombs,  29  N.  J. 
L.  136;  Aigenti  v.  San  Francisco,  16 
Cal.  255;  Germantown,  &c.  v.  Dhein, 
43  Wis.  420;  Slocumb  v.  Warren,  10 
R.  I.  116;  Williams  v.  Association,  26 
lud.  310;  Keyser  v.  Hitz,  2  ^lackey, 
173;  R.  R.  Co.  V.  Ilamblin,  24  liun, 
390. 

-"  Eppes  V.  R.  P..  Co.,  35  Ala.  33; 
Dows  V.  Napier,  91  111.  44;  Morrison 
V.  Dorsey,  48  Md.  461;  Deaderick  v. 
Wilson,  8  Baxt.  108. 

*  McBroom  v.  Lebanon  Co.,  31  Ind. 
268;  Corbrau  v.  Arnold,  58  Pa.  St. 
349. 

*  Turnpike  Co.  v.  McCarty,  8  Ind. 


Corporations.  1397 

addressing  petitions  to  its  directors,  and  acting  on  a  committee  to 
report  by-laws,  is  an  admission  of  incorporation.' 

§  1249.  Where  a  partj^-  whose  name  appears  signed  to  an 
instrnment,  performs  acts  which  are  required  by  it,  that  will  be 
regarded  as  such  a  recognition  of  its  validity  as  will  estop  him 
from  denying  its  legality.  So,  where  a  person's  name  appears  to  a 
subscription  of  stock  in  a  banking  association,  and  he  has  paid  calls 
as  a  shareholder  on  the  number  of  shares  set  opposite  his  name 
after  his  name  was  placed  there,  this  will  be  taken  as  an  admission 
that  his  subscription  was  authorized  and  is  binding.*  Where  a 
party  subscribes  to  stock  in  a  bank  or  other  corporation,  and  gives 
a  bond  and  mortgage  for  the  amount  of  his  subscription,  with 
intent  that  it  should  be  assigned  to  a  state  officer  as  security  for 
notes  issued  by  the  bank,  and  the  bond  and  mortgage  is  so  assigned 
and  notes  issued  on  the  security  of  them,  on  a  suit  by  the  assignee 
of  the  mortgage,  the  subscriber  is  estopped  from  setting  up  that 
the  mortgage  was  obtained  by  fraud,  and  if  the  mortgagor  had 
personally  given  the  mortgage  to  the  officer  who  issued  the  bills 
or  notes  as  valid  security,  he  cannot  afterwards  set  up  that  the 
security  is  invalid.^  So,  where  one  deposits  with  an  insurance 
company  valuable  securities,  for  the  purpose  of  having  the  same 
reported  by  the  company  as  part  of  its  assets,  and  exhibited  to  the 
insurance  commissioner  as  such,  and  they  are  so  used,  he  is  estop- 
ped from  denying  the  validity  of  his  subscription,  and  from 
recovering  the  securities,  and  from  alleging  informalities  in  the 
organization  of  the  company,  or  that  his  subscription  was  condi- 
tional mei'ely."  Where  a  bank  charter  required,  that  a  certain 
proportion  of  its  capital  should  be  paid  in  in  specie,  and  a  certi- 
ficate thereof,  under  oath,  before  it  should  proceed  to  issue  bills ; 
the  president  rendered  such  a  certificate,  knowing  it  to  be  untrue 
(in  consequence  of  which  the  bank  was  illegally  organized),  and 
afterwards  transferred  his  stock  ;  his  administrators  were  estopped 
from  recovering  of  the  stockholders  upon  the  bills  of  which  he 

392;  Ensey  v.  R.  R.  Co.,  10  Ind.  178;  Co.  v.  Clark.  25  N.  Y.  208. 

Fort  Wayne,  &c.  Co.  v.  Dean,  10  Ind.  »  Hubbard  v.  Briggs,  31  N.  Y.  518; 

563.  Palmer  v.  Smith,  10  K  Y.  303;  Smith 

'  South  Bay  Co.  v.  Gray,  30]\Ie.  547.  v.  Monroe,  84  N.  Y.  354. 

2  Boggsv.  blcott,  40  111.303;  Maltby  4  Commonwealth    v.    Ins.    Co.,    11 

V.  R.  R  Co.,  16  Md.  422;  Black  River  Phila.  650. 


1398  The  Law  of  Estoppel. 

died  possessed.'  A  person  who  receives  funds  of  a  bank  and 
transacts  business  with  it,  cannot  afterwards,  in  an  action  by  the 
receivers,  deny  the  legality  of  its  organization.*  So  a  debtor  to  a 
bank  cannot  colhiterally,  in  a  suit  on  the  debt,  avail  himself  of 
fi-aud  in  the  organization  of  the  bank,  to  defeat  their  charter, 
they  having  always  acted  as  if  well  organized.'  After  a  banking 
association  has  repudiated  for  years  all  the  arrangements  made 
with  one  who  subscribed  for  shares,  (and  denied  him  the  rights 
of  a  stockholder),  the  associates,  by  their  receiver,  who  represents 
them,  cannot  be  permitted  to  come  in  and  claim  him  as  a  stock- 
holder or  partner.^  After  a  bank  is  insolvent,  its  debtor  cannot 
purchase  notes  for  wliich  it  was  liable,  to  set  off  against  his  debt.^ 
In  an  action  by  a  bank  on  a  bond  wliich  recited  that  A.  is  cashier, 
the  bondsmen  are  estopped  from  denying  that  A.  was  properly 
appointed  and  qualified  as  such  cashier.'  So  a  cashier  by  perform- 
ing certain  duties  in  his  official  capacity,  is  estopped  from  denying 
that  they  had  been  prescribed  by  the  directors.' 

§  1250.  A  defect  in  the  proceedings  to  organize  a  corporation 
is  no  defense  to  a  stockholder  sued  to  enforce  his  individual 
liability,  who  has  participated  in  its  acts  of  user,  as  a  corporation 
defacto^  and  appeared  as  a  shareholder  upon  its  books,  when  the 
debt  for  which  he  is  sued  was  contracted.*  Where  a  shareholder 
of  a  corporation  is  called  upon  to  respond  to  a  liability  as  such, 
and  where  a  party  has  contracted  with  a  corporation,  and  is  sued 

»  McDougal  V.  Bellamy,  8  Ga.  411.  Association  v.  Haj^es,  4  Abb.  Cr.  App. 

*  Bank  V.  Renick,  15  Ohio,  332.  184;  Association  v.    Read,  'o;}  N.   Y. 

3  Bank  V.  Williams,  25  Ga.  594.  474;    Camp   v.    Burne,    41   Mo.    525; 

Burrows  v.   Smith,  10  N.  Y.  550.  Warehousing  Co.  v.  Badger,  67  N.  Y. 

5  Thorpe  V.  Wedgeforth,  50  Pa.  St.  294,  Cooper  v.  Shaver,  41  Barb.  151; 

82.  R.  R.  Co.  V.  Wilson,    22  Conu.    4)35; 

«  Bank  v.  Chef  wood,  3  N.  J.  1.  Ellis  v.  Schniock,  5  Bing.  521;  Rector 

''  Durkin  v.  Bank,  2  P.  &  H.  277.  v.  Lovett,  1  Hall,  191;  Topping  v.  Bed- 

«  Eaton  V.  Aspinwall,  19  X.  Y.  119;  ford.  4  Allen,  121;  Ejipes  v.  R.  R.,  35 

Eaton  V.   Smith,  19  N.  Y.  119;  Whee-  Ala.  33;  Doole}-  v.  WoJcott,  4  Allen, 

lockv.  Kost,  77  111.  296;  R.  R.  Co.  v.  407;  Hamtranck  v.  Bank,  2  ]\I().  169; 

Thacher,  11  JN.  Y.  103:  j\IcFarlan  v.  .Tones  v.  Foundry,  14  Ind.  88;  Med. 

Ins.    Co.,   4   Denio,    395;    Dorris    v.  Inst.    v.     Harding,     11     Cush.     285; 

Sweeny,  60  N.  Y.  463;  S.  C,  64  Barb.  Hughes  v.  Bank,  5  Litt.  47;  Nav.  Co. 

636;  Aspinwall  v.  Sacchi,  57  N.  Y.  331 ;  v.  Neal,  3  Hawks.  520;  Casey  v.  Galli, 

McLaughlan  v.   Association,  62  Ind.  94  U.  S.  680. 
263;  R.  R.  Co.  v.  Gary,  26  N.  Y.  75; 


CoRPOTiATioisrs.  1399 

upon  the  contract,  neither  is  permitted  to  deny  the  existence  or 
the  legal  validity  of  such  corporation.  Any  other  doctrine  would 
be  contrary  to  the  plainest  principles  of  reason  and  of  good  faith^ 
and  involve  a  mockery  of  justice.  Parties  mnst  take  the  conse- 
quences of  the  positions  they  assume.  They  are  estopped  to  deny 
the  reality  of  the  state  of  things  Avhich  they  have  made  appear  to 
exist,  and  upon  which  others  have  been  led  to  rely.  Sound 
ethics  require  that  the  apparent  in  its  effects  and  consequences 
should  be  as  if  it  were  real,  and  the  law  properly  so  regards  it. 
Where  a  charter  gives  to  individuals  a  corporate  capacity  upon 
the  performance  of  certain  acts,  a  person  contracting  with  these 
individuals  by  their  corporate  names  is  estopped  from  denying 
the  performance  of  those  acts,  which  gave  them  a  corporate 
existence.'  So  one  who  has  received  property  from  a  corporation 
by  way  of  mortgage,  and  has  sold  it  under  the  power  contained 
in  the  mortgage,  cannot  refuse  to  credit  it  with  the  proceeds,  on 
the  ground  that  its  dealings  with  him  were  ult7'a  vires.  Neither 
a  stockholder  who  has  acted  as  a  director,  nor  a  party  incurring  a 
debt  to  a  company,  can  set  up  as  a  defense  an  irregularity  which 
might  show  that  a  corporation  never  existed,  or  that  it  had  incur- 
red a  forfeiture.^  Upon  the  same  principle  one  who  has  openly 
avowed  himself  a  stockholder  of  the  company,  has  taken  part  in 
its  management,  cannot  be  allowed  as  against  third  persons,  to 
allege  that  the  corporation  was  never  lawfully  created."  Such 
allegations  are  only  available  on  behalf  of  the  sovereign  power  of 
•the  state.^ 

§  1251.  A  party  whose  name  is  entered  on  the  books  of  a 
corporation  as  a  stockholder,  receiving  dividends  or  paying  calls, 
is  estopped,  as  against  creditors,  to  disclaim  such  stock  as  stands 
in  his  name.^     As  the  law  conclusively  presumes  that  creditors 

i  Hamtrack  v.  Bank,  2  IVIo.  169;  Tar  bott  v.  Aspiuwall,  26  Barb.  202. 
Eiver   Co.    v.    Neul,    3    Hawks.    530;  ^  Barretts,  in  re,  4   De    G.  J.  &  S. 

Society  v.  Petry,  6  N.  H.  164;  John  v.  41G;  Wakefield    v.   Fargo,   90  N.  Y. 

Bank,  2  Blackf.  367.  213;  Shaffer,  in  re,    1  De  G.  M.  &  G. 

2  Arms  Co.  v.  Barlow,  63  K  Y.  63;  57G;  Gower,    in   re,  L.  R.    6  Eq.  77; 

Hough  V.  Land  Co.,  73  111.  23;  Dyer  v.  Dane  v.  Young,  61  Me.  160;  Bank,  in 

Walker,  40  Pa.  St.  157.  re,  22  N.  Y.  ol  Graff  v.  R.  R.  Co.,  31 

^Cowirth   V.    Culver,    69    111.    502;  Pa.    St.   489;  McHose  v.  Wheeler,  45 

People  V.  Mauf'g  Co.,  82  111.  457.  Pa.  St.  32;  Hawley  v.  Upton,   102  U. 

*  Sands  V.  Hill.  42  Barb.   691;  Ab-  S.  314;  Ry.  Co.  v.  Mowatt,    15   Q.  B. 


1400  The  Law  of  Estoppel. 

have  contracted  their  debts  on  the  hona  fides  of  the  list  of  stock- 
holders,' and  wlieii  a  subscription  will  operate  just  as  effective!}' 
to  deceive  the  public  into  subscribing  for  other  shares  or  giving 
credit  to  tlie  corporation,  whether  the  statutory  earnest  money  is 

paid  or  not A  person   cannot    discharge    himself  of  the 

responsibilities  of  a  stockholder  by  showing  that  he  never  paid 
the  deposit  or  first  installment  required  of  every  subscriber.  By 
the  articles  of  association,  the  deed  of  settlement  or  the  general  law, 
a  person  will  not  be  thus  permitted  to  take  advantage  of.his  own 
default,  to  the  prejudice  of  others.*  In  an  action  by  creditors  of 
a  corporation  to  compel  its  stockholders  to  pay  up  the  balance  due 
on  their  subscriptions,  they  are  estopped  from  showing  that  their 
subscriptions  were  obtained  by  fraud  and  misrepresentation  of  the 
agents  of  the  corporation.'  Private  arrangements,  giving  privi- 
leges to  one,  to  induce  him  to  subscribe,  hoping  thereby  to  draw 
on  others,  are  no  defense  to  paj'raent.  The  same  principle  applies 
to  the  case  of  a  subscription  to  the  capital  stock  in  an  organization 
which  has  attempted  irregularly  to  create  itself  into  a  coi'poration 
and  has  acted  as  such.  The  rule  applies  to  increasing  stock  in  a 
corporation  wlien  the  question  arises  upon  paying  a  subscription 
to  the  capital  stock  forming  a  part  of  such  increase.  The  duty 
and  the  necessity  of  performing  the  contract  are  the  same  as  in 
the  case  of  an  original  stockholder.  Where  a  corporation  is 
adjudged  a  bankrupt,  and  an  assignee  is  appointed  under  the 
bankrupt  laws,  such  assignee  representing  both  the  corporation 
and  its  creditors,  the  defense  of  irregular  organization  cannot  be 


521;  Flax  Co.    v.    Wellesley,  6   H.  &  Co.,  6  Ala.  741;  Smith  v.  Plauk  Road 

N.    38;    Banking  Co.,  in   re,  L.  R.  3  Co.,  30  Ala.  650;  Thorp  v.  Woodiiull, 

Ch.  App.  131;  Peat  Co.  v.  Phillips,  1  1  Sandf.  Ch.  411:  R.  R.  Co.  v.  Applc- 

B.  &  S.  598;  Peel's  Case,  L.  R.  3   Ch.  gate,  21  W.  Va.  182;  Wight  v.  Shelby, 

App.  674.  R.  Co.,  16  B.  Mou.  4;  Mitchell   v.  R. 

'  Magruder  V.  Colston,  44  Md.  349;  R.  Co.,  17  Ga.  574;  Blair   v.    Ruthcr- 

Fishcr  v.  Seligman,  75  Mo.  13.  ford,  31  Tex.  465. 

^  Thompson  on  Liab.  of  Stockhold-  '  Olgiviev.  Insurance  Co.,  22  How. 

ers,  §107;  Plank  R.  Co.  v.  Vaughn,  20  380;  R.  R.   Co.  v.  Dudley,    14   N.   Y. 

Barb.  155;  S.  C,  14  N.  Y.  546;  dies-  336;  Kelsey  v.  Oil  Co.,  45   N.  Y.  305; 

ley  V.  Pierce,  32  N.  H.  402;  Feny  Co.  Bank  v.  Church,  29  Conn.  137;   Graff 

V.  Jones,    39    N.    11.   491;   Beach  v.  v.  R.  R.  Co.,  31  Pa.  St.  489;  Bade  v. 

Smith,  28   Barb.    254;    R.   R.    Co.  v.  Society,  47   Md.    117;  R.    R.    Co.    v. 

Clark,  25  N.    Y.    208;  P.   R.    Co.   v.  Fields,    10  Ind.   187;   R.   R.    Co.    v. 

Bry.ln,  6  JouesL.  82;  Hall   v.   R.    R.  Slaughter,  10  Ind.  218. 


CORPOEATIONS.  1401 

urged  against  him.  In  an  action  by  such  an  assignee,  to  recover 
unpaid  subscriptions  upon  stock  in  such  an  organization,  the 
defense  of  false  and  fraudnlent  representations  inducing  such 
subscription  can  not  be  set  up  especially  where  the  subscriber  has 
not  been  vigilant  in  repudiating  his  contract.*  One  who  has 
taken  and  relies  on  a  conveyance  of  land  from  a  company  which 
has  assumed  in  giving  it,  to  act  as  a  corporation,  cannot  deny  the 
legal  existence  of  the  corporation,  in  an  action  against  him  to 
recover  possession  of  the  land,  by  another  person  who  has 
attached  the  same  in  an  action  against  the  company  as  a  corpora- 
tion, prior  to  the  recording  of  the  deed,  and  has  subsequently 
levied  his  execution  thereon.*  One  who  has  conveyed  land  to  a 
corporation  empowered  to  purchase  and  hold  land,  cannot  main- 
tain an  action  to  have  his  deed  set  aside  on  the  ground  that  the 
corporation  is  prohibited  by  charter  from  acquiring  land  except 
for  specified  purposes,  but  has  purchased  and  is  holding  the  land 
in  question  for  a  different  purpose.'  One  Avho  was  active  in  the 
organization  of  a  corporation,  being  an  original  member  and 
having  induced  othei's  to  become  members,  and  to  deal  with  it  as 
a  corporation,  and  has  borrowed  money  from  it,  and  has  given 
his  obligation  payable  to  it  therefor,  cannot  evade  the  enforcement 
of  such  obligation  by  an  objection  to  the  validity  of  the  original 
organization ;  he  is  bound  by  an  equitable  estoppel. 

§  1252.  A  person  will  not  be  allowed  to  claim  and  enjoy  as 
regards  a  corporation,  creditors  and  co-shareholders,  the  benefits  of 
a  position  as  shareholder  and  then  repudiate  the  statutory  obliga- 
tion attached  to  it."  So  a  party  is  estopped  from  denying  the 
corporate  existence  of  a  company,  when,  by  holding  its  bonds,  he 
acquires  a  locus  standi  in  the  suit  brought  to  foreclose  the  inort- 
gage  made  to  secure  their  payment.  And  the  existence  of  irregu- 
larities or  even  fraud  will  not  be  sufficient  to   enable  such  party 

'  Manf'g    Co.    v.    Davis,  14  Johns.  How.  387;  Carver  v.  Upton,  91  U.  S. 

238;  Sanger  v.  Upton,   91   U.  S.    56;  64. 

R.  R.  Qo.  V.  Gary,  20  N.  Y.  75;  Upton  «  Dooley  v.  Wolcott,  4  Allen,  406. 

V.  Trebilcock,   91  U.  S.  45;  Bissell  v.  ^  Hough  v.  Land  Co.,  78  111.  23. 

R.  R.  Co.,  23  N.    Y.   259;  Chubb  v.  "  Matbewman's  Case,   L.    R.  3  Eq. 

Upton,    95  U.    S.    665;    Church    v.  781;  Bank,  in  re,  22  N.  Y.  9;  Bank  v. 

Pickett,  19  N.  Y.  482;  Upton  v.  Ilam-  Case,  99  U.  S.  628;  Hobart  v,  Johnson, 

born,  3  Biss.  417;  Webster  v.  Upton,  8  F.  R.  493. 
91  U.    S.    65;   Olgivie  v.  Ins.  Co.,  23 


]402  The  Law  of  Estoppel. 

to  raise  the  question  of  corporate  existence  for  tlie  purpose  of 
gainino;  some  supjiosed  advantage  over  other  creditors  of  the 
con]j)any  who  have  relied  on  its  corporate  existence  as  he  ha^ 
done.'  As  in  favor  of  creditors  and  third  persons  dealing  Avith 
a  corporation  in  good  faith,  the  regularity  and  validity  of  its 
organization,  effected  under  color  of  its  charter,  cannot  be 
impeached,  and  the  acts  of  its  officers,  wlio  are  officers  de  facto 
under  color  of  an  election,  are  binding  upon  the  corporation.^ 

§  1253.  If  the  charter  of  a  corporation  requires  a  particular 
officer  to  be  a  resident  of  the  state  in  which  it  is  located,  one  who 
has  accepted  and  exercised  that  office  cannot,  when  sued  by  its 
creditors,  be  heard  to  deny  the  character  in  which  he  held  him- 
self out  to  the  workl,  nor  allege  that  he  was  not  qualified  to  hold 
that  office  by  his  rtisidence  in  the  state,  ^  Inducing  one  to  act  as 
an  officer,  or  a  party  who  has  concurred  in  inducing  one  to  act,  is 
esto])ped  from  making  an  a])pHcation  in  the  nature  of  a  q^no 
warranto  to  eject  him  from  the  office.*  So.  where  a  party  accepts 
an  office  from  persons  who  are  acting  as  a  corporation,  and  serves 
as  such  officer  for  several  years,  and  in  his  official  capacity 
receives  money,  for  which  an  action  to  recover  it  is  brought 
against  him,  he  is  estopped  to  deny  the  corporate  existence  of 
the  plaintiff.^  A  corporator  who,  with  the  full  knowledge  of  the 
objections  to  the  legality  of  a  certain  class  of  votes,  attends  a 
meeting,  participates  in  its  deliberations  and  acquiesces  in  its 
decisions  by  canvassing  and  voting  in  the  election  of  officers,  is 
estopped  from  questioning  the  title  of  the  officers  elected,  on  the 
ground  that  such  class  of  votes  was  illegal."  It  is  a  bar  to  the 
application  of  the  relator  for  a  quo  xoarranto  that  he  was  present 

'  Wallace  v.  Loomis,  97  U.  S.  146;  Thompson  v.  Candor,  60  111.  247;  Big- 

R.  R.  Co.  V.  Zimmer,   20   111.  657;  R.  elow  v.  Gregory.  73  111.  197;  Spabr  v. 

R.  Co.  V.  Cook,  29  111.  242;  Goodrich  Bank,  94  Pa.  St.  429. 

V.  Reynolds,  31  111.  496;  Rice  v.   R.  '^  Water  Co.  v.  Dekay,  36  X.  J.  Eq. 

R.  Co.,  21  111.  95;  Ry.  Co.  v.  Ry.  Co,  548;  Lewis  v.    Clarendon,    5  Dillon. 

105  111.  110;  Cmss  v.  Mill  Co.,  17  111.  329. 

54;  Griswold,  v.  University,  20  111.  41 ;  »  B^nk  v.  St.  John,  25  Ala.  556. 

Baker  v.   Backus,  32   111.  7;  Mitchell  ^  Rogiua  v.  Greene,  2  Q.  B.  460. 

V.  Deads,  49  III.  417;  Marsh  v.  Lodge,  =  church  v.  Lovett,  1  Hall   N.  Y. 

27  111.  421 ;  Mendota  v.  Thompson,  21  191. 

111.  197;  Lewiston  v.  Proctor,    27   111.  «  State  v.  Lepro,  7  Rich.  (S.  C.)  264; 

14;  Hamilton  v.  Carthage,  24  111.  22;  Cole  v.  Duer,  29  Ga.  434. 


COEPOEATIONS. 


1403 


and  concurred  at  tlie  time  of  the  objectionable  election,  notwith- 
standing at  that  time  he  was  ignorant  of  tlie  objection,  for  a  cor- 
porator must  be  presumed  to  know  tlie  contents  of  his  own  char- 
ter and  of  tlie  law  applying  thereto/  Where  a  party  has  paid  in 
his  stock,  accepted  a  directorship  in  an  association  and  advised 
and  consulted  with  the  other  directors  in  reference  to  the 
business  of  the  association,  he  thereby  admits  that  he  was  a 
member,  and  such  acts  are  sufficient  to  render  him  liable  for  the 
debts  of  the  concern.* 


§  1254.  A  defendant  who  has  contracted  with  a  corporation 
de  facto ^  is  never  permitted  to  allege  an}'  defect  in  the  organiza- 
tion, as  affecting  its  capacity'  to  contract  or  sue.  It  would  be  in 
the  highest  degree  inequitable  and  unjust  to  permit  him  to 
rescind  a  contract,  the  fruits  of  which  he  retains,  and  can  never 
be  compelled   to   restore.'     When  a  person   contracts  with  an 


'  Rex  V.  Trevenen,  2  B.  &.  A.  339. 

-  Stone  V.  AVire  Co.,  41  111.  87;  Boggs 
V.  Olcott,  40111.  303;  Counth  v.  Culver, 
69  111.  502. 

^  Williams  v.  Association,  89  Ind. 
389;  Osborn  v.  People,  103  111.  224; 
Close  V.  Cemetery,  107  U.  S.  477;  Med. 
Inst.  V.  Harding,  11  Cusb.  285;  Society 
V.  Perry,  6  N.  H.  163;  College  v. 
Bryan,  50  [owa,  293;  Massey  v.  Asso- 
ciation, 22  Kas.  624;  Slocum  v.  War- 
ren, 10  R.  I.  116;  Goodrich  v.  Rey- 
nolds, 31  111.  497;  McLaughlin  v. 
Association,  62  Ind.  2G4;  Studebaker 
V.  Montgomery,  74  Mo.  101 ;  Bank  v. 
Daukin,  74  Ala.  471;  Eaton  v.  Aspin- 
wall,  19  N.  Y.  119;  R.  R.  Co.  v.  Cook, 
29  111.  242;  Ecker  v.  R.  R.,  8  Mo.  App. 
223;  Smelzerv.  Turnpike  Co.,  82  Ind. 
417;  Hallv.  Supply  Co.,  48  Mich*.  331; 
R.  R.  Co.  V.  Hurst,  9  Ala.  513;  White 
V.  Ross,  15  Abb.  Pr.  66;  Church  v. 
Pickett,  19  N.  Y.  482;  Cochran  v. 
Arnold,  58  Pa.  St.  399;  Commonwealth 
V.  Ins.  Co.,  11  P])ila.  550;  Bigelow  v. 
Gregory,  73  111.  201;  Baker  v.  Neff, 
73  Ind.  68;  French  v.  Donahue,  29 
Minn.  Ill;  R.  R.  Co.  v.  McPherson, 


35  Mo.  13;  Bank  v.  Willard,  25  N.  Y. 
474;  Bradley  V.  Ballard,  55  111.  413; 
Calleuder  v.  R.  R.  Co.,  11  Ohio  St. 
517;  Ins.  Co.  v.  Needles,  52  Mo.  17; 
Snyder  v.  Studebaker,  19  lod.  462; 
Rice  V.  R.  R.  Co.,  21  HI.  95;  Keyser 
V.  Hitz,  2  Mackey,  473;  Association  v. 
Ins.  Co.,  70  Ala.  120;  Warner  v.  Cal- 
lender,  20  Ohio  St.  197;  Smith  v. 
Shelby,  12  AVall.  358;  Town  Hall  Co. 
v.  Chester,  55  Cal.  99;  Peck  v.  Asso- 
ciation, 71  Ind.  357;  White  v.  Coven- 
try, 29  Barb.  305;  Warehousing  Co.  v. 
Badger,  67  N.  Y.  294;  Spahr  v.  Bank, 
94  Pa.  St.  429;  Canal  Co.  v.  Pinkham, 
1  Idaho  (N.  S.)790;  Jones  v.  Associa 
tiou,  77  Ind.  340;  Bank  v.  McDonald 
130  Mass.  264;  Bank  v.  Stone,  38  Mich 
779;  Ray  v.  Indianapolis,  39  Ind.  290 
Manfg  Co.  v.  Davis,  14  Johns.  238 
Stontimorc  v.  Clark,  70  Mo.  471. 
Bates  V.  Andrescoggin Co.,  49 Me.  491; 
Bank  v.  Rogers,  7  Bosw.  493;  College 
V.  Duke,  14  Iowa,  14;  Whitney  v. 
Robinson,  53AVis.  309;  State  v.  Bailey, 
16  Ind.  46  ;  Den  v.  Van  Houten,  10 
N.  J.  270;  Heaston  v.  R.  R.  Co..  16 
Ind.  275;  Camp  v.  Byrne,  41  Mo.  525; 


1404 


The  Law  of  Estoppel. 


association  xhicli  has  the  reputation  of  a  legal  corporation,  and  a 
de  facto  existence  as  a  corporation,  in  the  actual  exercise  of  cor- 
porate powers  and  franchises,  he  is  thereby  estopped  from  deny- 
ing its  corporate  existence,  or  inquiring  into  the  legality  of  its 
organization,  for  the  purpose  of  defeating  the  contract,  or  avoid- 
ing his  liability-  under  it.  When  an  association  of  persons  is 
found  in  the  exercise  and  user  of  corporate  franchises,  under 


R.  R.  Co.  V.  Evansville,  15  Ind.  395; 
Kuypliers  v.  Church,  G  Paige,  570; 
Anderson  v.  R.  R.,  12  Ind.  376; 
Church  V.  Lovelt,  1  Hall,  191 ;  Brown- 
lee  V.  R.  R.  Co.,  18  Ind.  68;  Ilum- 
tranck  V.  Bank,  2  Mo.  1G9;  Commis- 
sioners V.  Bright,  18  Ind.  93;  Henri- 
ques  V.  Dutch,  &c.  Co.,  2  Ld.  Raymd. 
1535;  Meikle  v.  Society,  16  Ind.  181; 
John  V.  Bank,  2  Blackf.  367:  Ryan  v. 
Valandiugham,  7  Ind.  416;  Hubbard 
V.  ChappcU.  14  Ind.  601;  Trumbull 
Co.  V.  Horner,  17  Ohio,  407;  Voorhees 
V.  Receiver,  19  Ohio.  463;  Upton  v. 
Hansborough,  8  Biss.  417;  Paysen  v. 
Withers, 5  Biss.  209;  Paysen  v.  Stoever, 
2  Dill.  407;  Upton  v.  Tribilock,  91  U. 
S.  45;  Sanger  v.  Upton,  91  U.  S.  56; 
Craig  V.  Cumberland,  72  Penn.  46; 
Clarke  v.  Thomas,  34  Ohio  S.  46;  Black 
River  v.  R.  R.,  25  N.  Y.  209;  Naviga- 
tion Co.  v.  AV'eed,  17  Barb.  308;  Min- 
ing Co.  v.  'Woodbury,  14  Cal.  424; 
Chamberlain  v.  R.  R.  Co..  15  Ohio  S. 
225;  Rtx  v.  Chetwynd,  7  B.  «fc  C.  695; 
Croniford,  »fec.  Co.  v.  Lacej-,  3  Y.  & 
J.  80:  People  v.  Peck,  11  AVend.  694; 
Glass  Co.  V.  Dewey,16Mass.  94;  Jack- 
son V.  Croy,  12  John.  427;  Samuel  v. 
Holladay.  Woohv.  400;  D.  W.  Co.  v. 
Coy,  13  Ohio  S.  91 ;  Phillips  v.  Davis, 
11  Mass.  113;  Academy  v.  Covvles,  6 
Pick.  434;  Zabriski  v.  R.  R.  Co.,  23 
How.  381 ;  Bissell  v.  Jeffersouville,  22 
How.  300;  Bank  v.  Dandridge,  12 
Wheat.  71;  Owen  v.  Purdy,  12  Ohio 
S.  73;  Hagerman  v.  Ass.,  25  Ohio  S. 
186;  Bradley  v.  Ballard,  55  111.  413; 
Argent i  v.  San  Francisco,  16  Cal.  256; 


Bissell  V.  R.  R.  Co.,  22  K  Y.  259; 
Church  V.  Pickett,  19  N.  Y.  485;  R.H. 
Co.  V.  Gary,  26  N.  Y.  75;  White  v. 
Ross,  4  Abb.  N.  Y.  App.  489;  Frost 
V.  Coal  Co.,  24  How.  278;  Douglas 
Co.  V.  Bolles,  94  U.  S.  104;  Casey  v. 
Galli,  94  U.  S.  680;  Anderson  v.  R.R. 
Co.,  12  Ind.  376;  Fisher  v.  R.  R.  Co., 
7  Ind.  407;  Kennedy  v.  Cotton,  28 
Barb.  59;  Machine  Co.  v.  Snow,  32 
Iowa,  433;  Merrill  v.  Reaver,  50  Iowa, 
404;  Union,  &c.  Co.  v.  Osgood,  1 
Duer,  707;  Leighte  v.  Everett  &  Co., 

5  Bosw.  716;  Cliurch  v.  Church,  5  W. 

6  S.  215;  Ross  V.  R.  R.  Co.,  77  111. 
127;  Harrison  v.  Muskingkum,  4 
Blackf.  267;  Iron  Co.  v.  Rutherford, 
18  N.  J.  L.  105;  Learsburgh,  «S.'c.  Co. 
V.  Cutler,  6  Vt.  315  ;  Richardson  v. 
St.  .Joe.  &c.  Co.,  5  Blackf.  146;  Cooper 
v.  Shaver,  41  Barb.  151;  R.  R.  Co.  ,v. 
Wilson,  22  Conn.  435;  McFarland  v. 
Ins.  Co.,  4  Denio,  392;  Topping  v. 
Beckford,  4  Allen,  121;  Ellis  v. 
Schniock,  5  Bing.  521 ;  Dooley  v.  Wal- 
cott,  4  Allen,  407;  Eppes  v.  \\.  R.  Co., 
35  Ala.  33;  .Jones  v.  Foundry,  14  Ind. 
89;  Hughes  v.  Bank.  5  Litt.  47;  Nav. 
Co.  V.  Keal,  3  Hawks.  520;  Eusey  v. 
R.  R.  Co.,  10  Ind.  178;  Palmer  v. 
Lawrence,  3  Sandf.  161  ;  Planters' 
Line  v.  Waggener,  71  Ala.  581;  Logan 
V.  R.  R.,  90  Ind.  552;  P.  R.  Co.  v. 
Bank,  60  ;^[d.  36;  Imbolden  v.  Mining 
Co.,  70  Ga.  86  ;  R.  R  Co.  v.  Orion,  6 
Sawyer,  157;  Hat-selman  v.  Mortgage 
Co.,  97  Ind.  365;  Ass.  v.  Ins.  Co.,  70 
Ala.  120. 


CORPOKATIONS.  1405 

color  of  legal  organization,  their  existence  as  a  corporation  cannot 
be  inquired  into  collaterally  ;  if  the  State  acquiesces  in  the  usur- 
pation, individuals  cannot  complain. 

§  1255.  In  a  late  case  in  the  Supreme  Court  of  the  United 
States,  that  court  said:  "  One  who  deals  with  a  corporation  as 
existing  in  fact  is  estopped  to  deny,  as  against  the  corporation- 
that  it  has  been  legally  organized.  And  in  a  court  of  equity,  at 
least,  the  owner  of  land,  who  stands  by  and  sees  it  conveyed  as 
, belonging  to  another,  cannot  afterwards  set  up  his  own  title 
agninst  the  grantee.  The  present  case  is  yet  stronger.  Close  did 
not  merely  deal  with  the  corporation,  and  permit  the  corpora- 
tion to  convey  parts  of  his  laud  to  purchasers  of  lots,  but  he  him- 
self assumed  to  act  as  the  corporation,  and  himself  made  the 
conveyance,  and  the  accompanying  representations,  to  every  pur- 
chaser. B\'  his  acts  he  represented  to  the  purchasers  of  lots  that 
the  cemetery  had  been  created,  and  the  land  was  owned  by  the 
corporation  under  its  charter,  and,  as  a  necessary  consequence,  that 
the  corporation,  and  all  I'ights  derived  from  it,  were  subject  to 
the  provisions  of  that  charter,  including  the  reservation  to  con- 
gress of  the  power  of  alteration,  amendment  or  repeal.  It  is 
upon  these  representations  that  purchasers  of  lots  have  acquired 
their  title  and  have  parted  with  their  money,  and  the  corporation, 
whose  existence  he,  at  least,  cannot  deny,  has  the  right  and  the 
duty,  as  the  representative  and  in  behalf  of  all  the  purchasers  of 
lots,  to  enforce  against  him  the  obligation  which  he  has  thereby 
assumed.  Pie  holds  the  fee  of  the  cemetery  in  trust  for  the  cor- 
poration, and  is  entitled  to  nothing,  as  against  the  corporation 
and  tliose  whom  it  represents,  but  such  compensation  for  his 
interest  as  original  proprietor  or  stockholder  as  is  consistent  with 
tiie  state  of  things  which  he  has  represented  to  exist."" 

So,  where  a  stockhulder  of  a  company  was  sued  on  a  note 
after  the  dissolution  or  the  company,  he  cannot  set  up  that  it  was 
never  legally  incorporated,  for  the  reason  that  by  becoming  and 
continuing  a  stockholder  he  recognizes  a  corporate  existence.^  It 
is  no  defense  to  an  action  of  foreclosure  brought  by  a  building 
association  against  the  mortgagor  that  the  association  had  for- 
feited its  charter.     It  belongs  to  the  State  alone,  by  a  proceeding 

'  Close  V.  Cemetery,  107  U.  S.  477.        "  Mead  v.  Keek-r,  34  Barb.  20. 


1406  The  Law  of  Estoppel. 

instituted  for  that  purpose,  to  enforce  the  forfeiture,  and  a  corpo- 
ration, until  l)y  <a  judicial  sentence  its  cliarter  be  declared  void,  is 
a  corporation  de  facto.,  and  no  person  dealing  with  it  can  be 
allowed  to  say  that  it  was  not  a  corporation  de  facto:'  A  stock- 
holder of  a  corporation,  who  joined  in  an  application  made  to  the 
court  bj  a  receiver,  for  authority  to  sell  the  assets  of  the  corpora- 
tion, will  be  estopped  from  questioning-  the  regularity  of  the 
receiver's  appointment,  or  of  the  order  directing  the  sale.' 

§  1256.  After  a  corporation  has  been  established  according  to 
the  provisions  of  the  statute,  upon  ])roper  evidence,  its  validity 
cannot  be  questioned,  or  its  legal  existence  denied  by  any  of  its 
members.^  So  the  recognition  of  a  corporation  in  a  statute  by 
the  legislature  of  a  state  is  a  waiver  and  estops  the  state  or  federal 
government  and  others  from  all  inquiry  into  the  regularity  of  its 
organization,*  and  a  party  alleging  in  his  petition  or  complaint 
the  incorporation  of  tlie  defendants  is  estopped  to  deny  that  they 
had  a  charter.^ 

§  1257.  An  agent  who  collects  money  in  the  name  of  persons 
acting  as  trustees  of  an  unincorporated  society,  on  a  bill  which  he 
received  from  them  for  collection,  or  takes  payment  of  such 
bill,  is  bound  to  account  to  such  persons  for  the  mono)'  received 
by  him,  and  in  a  suit  by  them  to  recover  the  same,  he  is  estop- 
ped from  denying  their  legal  or  beneficial  interest  in  the  money 
due,  or  their  right  to  sue  in  their  own  names.*  So,  where  a  per- 
son or  member  of  a  company,  having  done  and  consented  that 
)he  company  should  do  numerous  acts,  implying  that  it  was  a  cor- 
poration, he  is  equitably  estopped  from  denying  that  it  is  a 
eoi-poration.'  A  person  who  has  been  admitted  as  a  meinber  of 
a  corporate  body  and  has  acted  as  such,  is  estopped  in  an  action 
for  infringing   by-laws   from   showing   that   the  charter  was  nut 

'  Ass.  V.  Stevens,  5  Duer,  G76.  v.  Van  Rensselaer,  9  N.  Y.  291 ;  As- 

2  Battershall    v.    Davis,    31    Barb,  sociation  v.  Ins.  Co.,  70  Ala.  120. 
323.  6  Hinsdale  v.  Larned,    16   Mass.  65. 

3  Cooper  V.  yhavcr,  41  Barb.  151.  «  Day  v.  Southwell,  3  Wis.  657. 

<  Smith  V.  Smith,  2  Price,  101;  Peo-         '  Bank  v.  Ford,  27  Conn.  290;  Ass. 

pic  V.  Farnham,  ;i5  111.  562;  King  v.  v.  Mcliityre,    3  Allen,   571;  Bank  v. 

Sutton,   4   M.  &   S.    532;    People   v.  Collins,  22  Conn.    142;   Glass  Co.  v. 

Manhattan  Co.,  9  Wend.  351;  People  Dewey,  16  Mass.  94. 


COKPOKATIONS.  1407 

accepted  by  a  majority  of  the  grantees. '  Where  parties  contract 
with  a  corporation  knowing  that  its  certiticate  is  fraudulent  or 
erroneous,  they  cannot  allege  that  they  were  injured. 

§  1258.  An  agreement  between  A.  &  B.,  whereby  B.  is  in- 
duced to  take  A.'s  stock  upon  a  guarantee  of  dividends,  estops  B. 
from  denying  his  membership  and  liability.'''  A  buyer  of  shares 
who  has  made  false  representations  to  the  company  to  induce 
them  to  enter  his  name  upon  the  register  of  shares  is  estopped  to 
deny  the  validity  of  the  transfer  so  obtained,  in  an  action  against 
him  for  calls.'  So,  where  a  party  represents  himself  to  be  the 
owner  of  shares  and  sent  in  script  certificates  which  had  been 
purchased  by  him  claiming  to  be  registered  as  proprietor  in 
respect  thereof,  and  had  received  from  the  company  receipts 
therefor  with  a  notice  that  they  would  be  exchanged  for  sealed 
certificates  on  demand,  he  was  estopped  to  deny  his  liability  for 
calls,  although  his  name  had  not  been  entered  on  the  register  or 
any  transfer  entered  as  required  by  law.''  So  payments  of  install- 
ments on  subscription  to  its  stock  is  a  suflicient  recognition  of  its 
existence  and  organization,  to  enable  it  to  recover  unpaid  install- 
ments from  a  stockholder.^  But  a  subscriber  who  has  paid  an 
illegal  assessment  is  not  thereby  estopped  from  setting  up  illegal- 
ity, as  a  defense  to  a  suit  for  a  second  one.°  But  a  party  appointed 
to  receive  subscriptions,  subscribes  himself,  and  then  obtains  a 
charter  on  the  ground  that  the  subscriptions  were  taken  in  good 
faith,  is  estopped  in  an  action  against  him  for  assessments,  from 
showing  that  his  subscription  was  made  on  a  condition  not  com- 
plied with.^  Or  if  he  subsequently  erases  or  cuts  his  name  from  the 
subscription  list  he  is  still  bound.*   So  a  subscriber  will  be  estopped 

•  Pipe  Works  Co.  v.  Woodruff,  7  54;  Railway  Co.  v.  Daniel,  2  Q.  B. 
Bam.  &  C.  838;  Jolmsou  v.  Assoc,  28  81;  Robinson  v.  Kitchin,  21  Beav.  3(50; 
La.  An.  421.  Campbell's  Case,  L.  R.  9  Ch.  1;   Flax 

3  R.    R.   Co.    V.    Wilson,  22  Conn.  Co.  v.  Wellesloy,  6  H.  &  N.  38. 

447;    Plank,  R,    Co.    v.  Vaughn,    20  ^  R.  W.  Co.  v.  Daniel,  2  Q.  B.  281; 

Barb.  155;  Gittings  v.  Mayliew,  6Md.  R.  W.  Co.    v.  De  Medina,  2  Eng.  R. 

IIB.  W.  Cas.  735. 

*  R.  W.  Co.  V.  Woodcock,  7  M.  &  ^  Maltby  v.  R.  R.,  16  Md.  422. 

W.  574;  R.W.  Co.  V.  Freeman,  2  Eng.  «  R.  R.  Co.  v.  Cushing.  45  Me.  324. 

Railway  Cas.  522;  R.  W.  Co.  v.  Dan-  ->  Bavington  v.  R.  R.  Co.,  34 Pa.  St. 

iel,  2  Q.  B.  281;  Taylor  v.  Hughes,  2  358;  Nulton  v.  Clayton,  54  Iowa,  425; 

J.  &  L.  24;  Bank,  in  re,  22   L.  J.  Ch.  S.  C,  37  Am.  R.  213. 

194;  Bank  v.  Allison,  L.  R.  6  C.   P.  «  R.  R.  v.   Johnson,  30  N.  H.  490, 


1408 


The  Law  of  Estoppel. 


from  denying  the  legality  of  the  assessments,  on  the  ground  that 
all  the  shares  are  not  taken,'  and  where  a  party  has  paid  calls  on 
shares,or  attended  meetings  of  the  company  as  the  owner  of  shares, 
this  estops  him  from  denying  membership.*  Testimony  tending 
to  show  that  a  company  is  a  corporation  de  facto  dispenses  with 
strict  proof  and  estops  the  party  offering  it  from  afterwards  disput- 
ing the  company's  right  to  act  as  a  corporation.  Where  a  party 
defendant  pleads  the  general  issue,  it  is  an  admission  of  their 
corporate  capacity,  and  estops  any  proof  to  the  contrarj-.' 

§  1259.  A  deed  to  a  company  describing  them  as  a  corporation, 
before  in  fact  any  act  of  incorporation  has  been  passed,  estops  the 
grantor  from  claiming  title  against  them,  upon  their  becoming 
incorporated;  it  inures  by  way  of  estoppel,  against  the  grantor. 
And  no  other  proof  of  the  fact  of  its  being  a  corporjition  is  neces- 
sary.* Where  a  mortgage  or  other  instrument  is  given  to  a  cor- 
poration, it  admits  the  corporate  existence  of  the  mortgagee,  &c., 
and  no  further  proof  is  necessary.  So,  giving  a  note  is  an  admis- 
sion of  its  existence,  and  estops  the  maker  from  denying  that 
there  is  such  a  corporation,^  and  estops  the  maker  from  alleging 
that  the  charter  was  forfeited  before  the  note  was  made. 


'  Greer  v.  Railway  Co.,  96  Pa.  St. 
391;   S.  C,  42  Am.  548. 

*  Crawford  v.  Lacey,  3  Young  &  C. 
80:  R.  W.  Co.  V.  Graham,  3  E.  R.  C. 
870;  Tramway's  Co.  v.  Willows,  L. 
R.  8  C.  B.  D.  685;  Hallows  v.  Fernic, 
L.  R.  3  Ch.  App.  467;  Howards,  in 
re.  L.  R.  1:J  Eq.  30;  Fowler,  in  re,  L. 
R.  14  Eq.  316;  Lime  Co.  v.  Green,  L. 
R.  7  C.  P.  43;  Sewell's  Case,  L.  R.  3 
Ch.  App.  131 ;  Hull,  &c.  Co.  v.  Wel- 
lesley,  6  H.  &  N.  38. 

3  Roundell  v.  Fay,  32  Cal.  354; 
Couaril  V.  Ins.  Co.,  1  Peters,  450; 
Seaton  v.  R.  R.  Co.,  55  Mo.  416;  Bank 
V.  Bagley,  68  Me.  249;  Alderman  v. 
Finley.  10  Ark.  423;  Teatou  v.  Lynn, 
5  Pet.  231;  Mackenzie  v.  Trustees,  72 
Ind.  189;  Miss.  &c.  Co.  v.  Cross,  20 
Ark.  443;  Bank  v.  Curtis,  14  Conn. 
437;  Railsback  v.  Liberty,  inc.  Co.,  2 
Ind.  656;  Jones  v.  R.  R.  Co.,  14  Ind. 
89;  Hardy  v.   Merriweather,  14  lud. 


203;  Smith  v.  R.  R.  Co.,  55  Mo.  526; 
Harrisonville  v.  Martinsville,  &c.  Co., 
16  Ind.  505;  Carpenter  v.  Bank,  17 
Ind.  253;  Commissioners  v.  Bright,  18 
Ind.  93 ;  Boom  Co.  v.  Lamson,  16 
]Me.  224;  Savage,  &c.  Co.  v.  Arm- 
strong, 17  Me.  34;  School  v.  Fisher, 
30  JNIe.  523;  R.  R.  Co.  v.  Yeates,  67 
Ala.  164;  Ro.xbury  v.  Huston.  37  ]\Ie. 
42:  R.  1^  Co.  V.  Shirley,  20  Kas.  260; 
People  V.  Turnpike  Co.,  20  Barb.  518; 
Bank  v.  Orme,  3  Gill,  443;  Oroiu  v, 
Wedge  wood,  44  Me.  49;  Rlu'en  v. 
Nagatuck,  ifec.  Co.,  33  Pa.  St.  356; 
Whittington  v.  Bank,  5  H.  &  J.  489; 
Furnace  Co.  v.  Herkimer,  46  Ind.  142; 
Church  V.  Wood,  5  Ohio,  286;  Hud 
son  V.  R.  R.,  53  Mo.  525. 

"  Bryer  v.  Rich,  1  Met.  180;  Ecker 
V.  R.  R.  Co.,  8  Mo.  App.  223;  Whit- 
ney V.  Robinson,  53  Wis.  309;  Bank 
V.  Stumpf,  6  Mo.  App.  17. 

*  Franklin  v.  Twcogood,  13  Iowa, 


Corporations. 


1409 


§  1260.  Indorsing  a  note  to  a  bank  does  not  admit  that  they 
are  a  corporation.  To  give  it  such  an  effect  would  be  to  make 
them,  for  judicial  purposes,  a  corporation,  though  they  had  no 
existence  in  fact.'  A  party  is  estopped  from  setting  up  that  a 
foreign  corporation  cannot,  by  its  charter,  make  a  loan,  when  he 
is  sued  for  a  loan  made  to  him.''  Wl;ere  a  charter  of  a  corporation 
is  judicially  declared  to  be  forfeited,  and  a  trustee  is  appointed  to 
take  charge  of  its  assets,  on  a  bill  filed  for  the  distribution  of  the 
assets,  the  trustee  is  estopped  to  deny  the  title  of  the  stockholders 
to  such  distribution.*  An  individual  stockholder  cannot  maintain 
a  suit  against  the  directors  of  a  corporation  for  mismanaging  its 
affairs,  for  the  purpose  of  defrauding  the  corporation,*  nor  can  he 
object  to  a  transfer  of  all  its  property  to  another  corporation, 
where  it  is  done  under  a  law  passed  by  a  state  legislature.^  nor  can 
lie,  by  injunction,  restrain  the  transfer  or  sale.*  A  stockholder, 
standing  silently  by,  and  seeing  an  illegal  act  performed,  cannot 
liold  the  directors  responsible  for  such  act.  His  acquiescence  in 
it  estops  him.® 


515;  Society  v.  Perry,  6  N.  H.  164; 
Jones  V  Bank,  8  B.  Mon.  122;  R.  R. 
V.  Hurst,  9  Ala.  513;  John  v.  Bank, 
2  Blackfd.  357;  Bank  v.  Phoenix  Co., 
6  Hun,  71 ;  Bank  v.  Trimble,  6  B. 
Mon.  599;  Parish  v.  Wheeler,  22  N. 
Y.  49-1;  Palmer  v.  Lawrence,  3  Sandf. 
163;  Den  v.  Van  Houtou,  10  N.  J.  L. 
270;  Vater  v.  Lewis,  36  Ind.  288; 
Studdebaker  v.  Montgomery,  74  Mo. 
101;  Bank  v.  Glendon  Co.,  120  Mas.s. 
97;  R.  R.  Co.  V.  McPherson,  35  Mo. 
13;  Peck  v.  Ass.  71  Ind.  357;  Stouti- 
more  v.  Clark,  70  Mo.  471;  Topping 
V.  Beckford,  4  Allen,  120;  Ins.  Co.  v. 
Needles,  52  Mo.  17;  Huffaker  v.  Bank, 
12  Bush,  287;  Rector  v.  Lovett,  1 
Hall,  191;  Hall  v.  Harris,  16  Ind. 
Vol.  I.— 89 


180;  lus.  Co.  V.  Bowman.  60  Mo.  252; 
Bank  v.  Harding,  1  Neb.  461;  Ransom 
V.  Lodge,  51  Ind.  60;  St.  Louis  v. 
Shields,  62  Mo.  247;  Ryan  v.  Val- 
landinghara,7  Ind.  416;  Nasshau,  &c. 
Co.  V.  Moore,  55  N.  II.  48;  Meikel  v. 
Society,  16  Ind.  181;  Snyder  v.  Stude- 
baker,  19  Ind.  463;  Whitney  v.  Robin- 
son, 53  Wis.  309, 

'  Ilargiave  v.  Bank,  1  111.  84;  Bank 
V.  Van  Nostrand,  106  JVlass.  559. 

^  Nav.  Co.  V.  Weed,  17  Barb.  378. 

3  Bacon  v.  Robertson,  18  How.  480. 

4  Allen  V.  Curtis,  26  Conn.  466. 

5  Lauwan  v.  L.  R.  R.,  31  Pa.  St.  42. 
^Hodges   V.   Screw   Co.,  3   R.  I.  9; 

Graham  v.  R.  R.  Co.,  6  Eng.  L.  &  Eq. 
132, 


1410 


The  Law  of  Estoppel. 


CHAPTER  XX. 

HOW   AN   ESTOPPEL   IS   TO  BE  :\IADE  AVAILABLE— PLEADING 
AN  ESTOPPEL;— WAIVING  IT,  Etc.,  Etc. 


Section  1201.  Having  shown  what  an  estoppel  is,  liow  it  is 
created,  and  its  operation  and  application  to  parties,  privies,  titles 
to  real  estate,  commercial  jurisprudence,  corporations,  &c,,  it  is 
proper  now  to  show  in  what  manner  the  estoppel,  where  it  exists, 
is  to  be  made  available.  There  has  been  quite  a  diversity  of 
opinion  in  regard  to  this  question,  and  in  the  old  English  author- 
sities,  commencing  with  Coke's  reports  to  the  present  time,  there 
has  been  a  variety  of  decisions,  and  it  has  been  the  prevailing 
opinion  that  in  order  to  make  a  judgment  conclusive  by  way  of 
an  estoppel,  that  it  must  be  pleaded  as  such.  In  the  celebrated 
case  of  the  Duchess  of  Kingston,'  the  law  was  laid  down  that  a 
judgment  between  the  same  parties  on  the  same  point  is  in  plead- 
ing a  bar,  in  evidence  conclusive ;  and  the  law  seems  to  be  well 
settled,  that  where  there  is  an  opportunitj'  of  pleading  it,  it  is 
conclusive  as  a  plea,  but  where  there  is  no  such  opportunity  it 
is  conclusive  as  evidence.^     Thus  to  a  plea  oilihcimm  Unementum 


'  20  How.  State  Trials;  S.  P.  Paiuell 
V.  Habn,  61  Cal.  131. 

"'  Howard  v.  ]\Iitcliell,  14  Mass. 
241;  McNair  v.  O'Fallon,  8  Mo.  188; 
Sheltou  V.  Alcox,  11  Conn.  250  ; 
Isaacs  V.  Clark,  12  Vt.  692;  Wood- 
liouse  V.  Williams,  3  Dev.  508;  Trevi- 
baa  V.  Lawrence,  1  Salk.  370;  Ilitchin 
V.  Campbell.  2  W.  Bla.  827;  Warix-n 
V.  Comings,  6  Cusb.  103;  Wbittaker 
V.  Jackson,  33  L.  J.  Exch.  181  ; 
Chamberlain  v.  Carlisle,  26  N.  II.  540; 
JIagrathv.  Hardy,  4  Bing.  (N.  C.),782; 
Vooght  V.  Winch,  2  B.  &  A  GG2;  Uoc 
V.  Wright,  10  A.  &  E.  7G3;  Doe  v. 
Huddart,    2  C.  M.  &  II.  316;   Bell  v. 


Raymond,  18  Conn.  240;  Jackson  v. 
Lodge,  36  Cal.  28;  R.  R.  Co.  v.  How- 
ard, 13  How.  307;  Wight  v.  Butler,  6 
Wend.  284;  Burt  v.  Sternbergb,  4  Cow. 
5U9  ;  Wiles  v.  Howard,  5  Exchq.  557; 
AVard  v.  Ward,  22  N.  J.  699;  Dows  v. 
McMicliael,  6  Paige,  139  ;  Larum  v. 
Wilmer,  35  Iowa,  244  ;  Outram  v. 
Morcwood,  3  East,  346;  Wood  v. 
Jackson,  8  Wend.  10;  Dame  v.  Win- 
gate,  12  N.  H.  291;  Perkins  v.  Walker. 
19  Vt.  144;  Adams  v.  Barnes,  17 
]\Iass.  365;  Beebee  v.  Elliott,  4  Barb. 
457;  Lord  v.  BigeloAV,  8  Vt.  461; 
Flandrau  v.  Downey,  23  Cal.  354; 
Beal  V.  Pearre,  12  Md.  550. 


How  Made  Available.  1411 

the  plaintiff  may  reply,  that  the  defendant  ought  not  to  be 
admitted  to  plead  the  plea,  because,  &c.  (showing  some  ground 
of  estoppel) ;  and  the  defendant  must  answer  the  replication  by 
a  rejoinder;  but  if  a  party  means  to  insist  on  an  estoppel,  he 
must  take  the  first  opportunity  of  doing  so  which  the  pleadings 
afford  him.  If  he  fails  to  do  this  he  leaves  the  matter  at  large 
so  that  the  jury  may  decide  upon  the  evidence  before  them  with- 
out regard  to  an  estoppel.' 

§  1262.  While  it  is  also  a  rule  that  a  party  neglecting  to  plead  an 
estoppel  cannot  take  advantage  of  it,  if  denied  the  opportunity  to 
plead  it,  he  may  give  it  in  evidence  under  the  general  issue.  Thus 
where  A.  brought  trespass  quare  clausum  against  B.,  to  which  B. 
pleaded  title  in  C,  under  whom  he  chiimed  without  showing  liow 
C.'s  title  was  derived,  or  when  it  accrued,  it  was  held  that  A. 
might  give  in  evidence  an  award  against  the  title  of  C.  without 
pleading  it.^  If  no  objection  is  taken  when  the  estoppel  by 
record  is  offered  in  evidence,  that  it  was  not  specially  pleaded,  no 
objection  can  be  afterwards  made  to  that  pleading.^  A  party  is 
bound  to  abide  by  his  pleadings,  and  is  estopped  from  proving 
anything  in  opposition  thereto.  A  party  is  not  allowed  to  state 
one  case  in  a  bill  or  answer  and  make  out  a  different  one  by 
pi'oof  .*  The  allegata  and  probata  must  agree  ;  where  tlie  case  is 
such  that  the  plaintiff  cannot  plead  an  estoppel,  it  is  conclusive 
as  evidence.  A  judgment  to  constitute  an  estoppel  must  show 
that  the  subject  mutter  has  been  passed  on  and  adjudicated.'* 
There  can  be  no  averment  in  pleading  against  the  validity  of  a 
judgment,  though  there  may  be  against  its  operation." 

§  12G3.  The  court  or  jnvy  are  equally  bound  by  an  estoppel, 
whether  it  be  plead(.'d  or  given  in  evidence.'     Lord  Coke,  in  one 

'  FeveryUam  v.  Einerscn,  11   Exch.  Padgley  v.  Stilhvell,  27  Mo.  128;  Bid- 

385;  S.  C,  33  E.  L.  &  E.  351;  Mathcw  die  v.  Wilkins,  1  Pesters,  686;   French 

V.  Osborne,  20  E.  L.  &  E.  238;  Cooky  v.  Ins.  Co.,  5  IMcLeau.  466;  Young  v. 

V.  .Braj'tou,  16  Iowa,  10.  Pritcbard,    75   Mo.    513;    Altbrop  v. 

^  Sbclton  V.  Alcox,   11  Conn.  250.  Beckwitb,  14111.  App.  628. 

3  Gray  v.  Pingiy,  17  Vt.  409.  «  Flandrau  v.  Downey,  23  Cal.  354; 

^  R.  R.  Co.  V.  McCartliy,  96  U.  S.  R.    R.    v.    Howard,    13    How.    308; 

267.  Griffin   v.    Reynolds,    17   How.    609; 

5  Clemens  v.  Murpby,  40  Mo.  121;  Cecil  v.  Jobusou,  11  B.  Mon.  35. 

Wight    V.    Walbaum,    39    111.    555  ;  '  R.  R.  v.  Howard,  18  How.  308. 


1412  Estoppel. 

of  tiie  earlier  cases,  decided  that  a  jury  were  not  bound  by  an 
estoppel,  becanse  they  liad  taken  an  oath  to  decide  according  to 
the  truth,  but  this  was  in  the  case  of  an  estoppel  by  deed.  But 
this  is  denied  in  its  application  to  judgments  recovered,  for  the 
obvious  re.isons,  lii'st,  that  juries  are  not  sworn  to  say  the  truth, 
but  to  give  a  true  verdict  according  to  the  evidence.  An  estop- 
pel ]iiecludes  the  party  estopped  from  oifering  any  evidence  to 
the  contrary.  And  it  is  difficult  to  see  in  what  manner  the  oath 
of  a  jui'or  can  be  opposed  to  the  rule,  that  a  record  shall  prevent 
the  party  against  whom  it  is  offered  in  evidence  from  producing 
other  evidence  to  controvert  it,  and  that  all  the  evidence  being 
thus  one  waj',  namely,  loith  the  record^  the  jury  shall  be  hound 
to  give  their  verdict  for  the  party  with  whom  all  the  evidence  is, 
and  against  the  party  in  whose  favor  there  is  no  evidence. 
Second,  the  esto})pel  b}'  deed  is  allowed  for  the  benefit  of  the 
paity,  which  he  is  at  liberty  to  waive,  but  in  the  case  of  an 
estoppel  by  judgment,  the  whole  community  have  an  interest  in 
holding  the  parties  conclusively  bound  by  their  own  litigation. 
Interest  relpuhlicae  res  judioatae  non  resci7idl.  If  the  law  of 
estoppel  is  founded  on  justice  and  good  sense,  if  it  be  true  that 
ncr/io  debet  his  vexaripj'o  eadem  causa,  it  would  indeed  be  strange 
it'  the  accidental  form  of  an  issue  deprived  a  party  of  the  benefit 
ot"  it,  and  force  him  to  litigate  tlie  same  question  twice  over.  It 
nj^pears  inconsistent  that  the  authority  of  a  res  judicata  should 
govern  the  court,  when  the  matter  is  referred  to  them  by  plead- 
ing, but  that  a  jury  should  be  at  liberty  altogether  to  disregard 
it,  when  the  matter  is  referred  to  them  in  evidence,  and  that  the 
operation  of  so  important  a  principle  should  be  left  to  depend 
upon  the  technical  forms  of  pleading  in  particular  actions.' 

$^  12(51.  It  has  never,  with  one  or  two  exceptions,  been  held, 
that  where  a  decree  in  chancery  or  judgment  of  an  inferior  court, 
or  any  other  matter  quasi  of  record,  is  conclusive,  any  necessity 
exists  of  pleading  it,  in  order  that  it  may  be  held  so.  The  obliga- 
tion of  a  jury  to  find  a  true  verdict  is  equally  as  great  whether 
tlie  matter  offered  as  conclusive,  be  a  decree,  or  a  judgment.  The 
same  rule  prevails  in  regard  to  awards,  which  is  applicable  to 
judgments,  while  the  forura  of  an  arbitrator  is  a  domestic  one, 

'  Doe  V.  AVright,  10  A.  &  E.  763. 


How  Made  Available.  1413 

constituted  by  the  parties  themselves.  ThcA'  are  as  much  bound 
bj  it  as  bj  a  judgment  of  a  court  of  record,  and,  therefore,  the 
same  rule  is  applicable  in  regard  to  pleading  them  or  giving  them 
in  evidence.  It  has,  therefore,  become  a  well  established  principle 
of  law  in  the  majority  of  the  American  states  as  well  as  in  Eng- 
land, that  a  verdict  and  judgment  upon  the  merits  in  a  former 
suit,  are,  in  a  subsequent  action  between  the  same  parties,  where 
the  cause  of  action,  damages,  or  demand  is  identically  the  same, 
conclusive  against  the  plaintiff's  right  to  recover,  whether  pleaded 
in  bar,  or  given  in  evidence  under  the  general  issue,  where  such 
evidence  is  legally  admissible  ;  and  that  such  prior  verdict  and 
judgment  need  not  be  pleaded  by  way  of  estoppel.'  Wliere,  how- 
ever there  is  perfect  identity  in  both  suits  as  to  the  plaintiff's 
right,  the  defendant's  wrong,  and  plaintiii's  damages,  the  I'ecord 
of  the  former  suit  is  complete  bar,  whether  pleaded  technically  as 
an  estoppel  with  n  prout patet per  recordum,  or  given  in  evidence 
to  the  jury.* 

§  1265.  The  reason  for  this  rule  is  tlius  stated  by  Kennedy,  J., 
in  Marsh  v.  Pier,  sujyra :  "The  maxim  nemo  debet  his  vexari  si 
constet  curice  quod  sit  pro  una  et  eadem  causa,  being  considered 
as  doubtless  it  was,  established  for  the  benefit  and  protection  of 
the  party,  he  may,  therefore,  waive  it ;    and   unquestionably,  so 

1  Marsh  v.  Pier,  4  Rawle,  288t  Kil-  5o0;  Taylor  v.  Dustin,  43  N.    H.  493; 

heffer  v.  Herr,  17  S.  &  R.  325;  Shafer  Chamberlain  v.  Carlisle,  2l)  X.  H.  540; 

V.  Stonebraker,  4  G.  &  J.  300;  Cist  v.  Young  v.  Black,  7  C ranch,  566;  State 

Zeigler,  16  S.  &  R.  282;  Bctts  v.  Starr,  v.  Nourse,   9   Peters,   8;  McNight   v. 

5  Conn.  550;  Preston  v.  Harvey,  3  H.  Taylor,  1  Mo.  282;  Doty  v.  Brown,  4 

&M.  55;  E.stillv.  Taiil,  2   Yerg.  467;  N.    Y.    71;  French   v.  Neal,  24  Pick. 

King  V.  Chase,  15  N.  H.  9;  Lawrence  55;  Penrose    v.    Green,    1    Mo.   774; 

V.  Hunt,  10  Wend.  83;  Thompson  v.  Strong  v.  Ins.  Co.,  62   Mo.  289;  Staf- 

Roberts,    24   How.    223;  Hancock   v.  ford  v.  Clark,   2   Bing.  277;  Gray   v. 

Welsh,  1  Stark.  347;  Wheately  v.  Man-  Pingry,  17  Vt.  419;  Niles  v.  Totman, 

heim,  2  Esp.  608;  Slrutt    v.    Boving-  3   Barb.    594;    Jones  v.  Lavender,  55 

ton,    5   Esp.    66;  Rex  v.  St.  Pancras,  ■  Ga.    228;  Whitehurst  v.    Rogers,    88 

Peake,  220;  Bird  v.  Randall,  3  Burr.  Md.  503;   Briggs  v.  Bowen,  60   K  Y. 

1353;  Offut  V.  Johns,  8  Mo.  120;  Wal-  454;  Reynolds  v.  Stansbury,  20  Ohio. 

Iter  V.    Chase,   53    Me.    258;  Gray  v.  344;  Krekeler  v.  Ritter,  62  N.  Y.  372; 

Gillalan,  15  HI.  453;  Vallandingham  Ins.  Co.  v.  Harris,  97  U.  S.  331;  Cecil 

V.  Ryan,  17  111.  25;  AVarwick  v.    Un-  v.  Cecil,  19  JMd.  72. 

derwood,   3  Head,   238;  Blodgett  v.  "  Jones    v.    Lavender,  55  Ga.  228; 

Jordan,  6  Vt.  580;  Geoige  v.  Gillespie,  Krekeler  v.    Ritter,   62   K  Y.    372; 

1  Iowa,  421;  Beall  v.  Pearre,  12  Md.  Rucker  v.  Steelman,  93  Ind  222. 


1414  Estoppel. 

far  as  lie  is  individnally  concerned,  there  can  he  no  rational  objec- 
tion to  his  doing  so.  But  tlien  it  oui^ht  to  be  recollected  that  the 
conininnitj  has  also  an  equal  interest  and  concern  in  the  matter, 
on  account  of  its  peace  and  quiet,  which  ought  not  to  be  disturbed 
at  the  will  and  pleasure  of  every  individual,  in  order  to  gratify 
vindictive  and  litigious  feelings,  llenee,  it  would  seem  to  follow, 
that  wherever  on  the  trial  of  a  cause  from  the  state  of  the  plead- 
ings in  it,  the  record  of  a  judgment  rendered  by  a  competent 
tribunal  upon  the  merits  in  a  former  action  for  the  same  cause, 
between  the  same  parties,  or  those  claiming  under  them,  is  prop- 
erly given  in  evidence  to  the  jury,  that  it  ought  to  be  considered 
conclusively  binding  on  both  court  and  jury,  and  to  preclude  all 
further  inquiry  in  the  cause,  otherwise  the  rule  or  maxim  exped'it 
reip\iblic(B  id  sit  finis  litium^  which  is  as  old  as  the  law  itself, 
and  a  part  of  it,  will  be  exploded  and  entirely  disregarded.  But 
if  it  be  part  of  our  law  as  seems  to  be  admitted  by  all  that  it  is,  it 
appears  to  me,  that  the  court  and  jury  are  clearly  bound  by  it, 
and  not  at  liberty  to  find  against  such  former  judgment.  A  con- 
trary doctrine  subjects  the  public  peace  and  quiet  to  the  will  or 
ueglect  of  individuals  and  prefers  the  gratiiicatioii  of  a  litigious 
disposition  on  the  part  of  suitors,  to  the  preservation  of  the  pub- 
lic tranquility  and  happiness.  The  result  among  other  things 
would  be,  that  the  tribunals  of  the  State  would  be  l)oniid  to  give 
their  time  and  attention  to  the  trial  of  new  actions,  for  the  same 
causes,  tried  once  or  oftener,  in  former  actions  between  the  same 
parties  or  privies  without  any  limitation,  other  than  the  will  of 
tiie  parties  litigant,  to  the  great  delay  and  injury,  if  not  exclusion 
occasionally  of  other  causes,  Avhich  have  never  passed  in  rem 
judicatam.  The  effect  of  a  judgment  of  a  court,  having  jurisdic- 
tion over  the  subject-matter  of  controversy  between  the  parties, 
even  as  an  estoppel,  is  very  different  from  an  estoppel  arising 
from  the  act  of  the  party  himself,  in  making  a  deed  of  indenture, 
tfec,  which  may,  or  may  not  be  enforced  at  the  election  of  the 
other  party,  because  whatever  the  parties  have  done  by  compact, 
they  may  undo  by  the  same  means.  But  a  judgment  of  a  proper 
court,  being  the  sentence  or  conclusion  of  the  law,  upon  the  facts 
contained  within  the  record,  puts  an  end  to  all  further,  litigation 
on  account  of  the  same  matter  and  becomes  the  law  of  the  case, 
which  cannot  be  changed  or  altered,  even  by  the  consent  of  the 


How  Made  Atatlable.  1415 

parties,  and  is  not  only  l)inding  npon  them,  but  upon  tlio  courts 
and  jnries,  ever  afterwards  as  long  as  it  shall  remain  in  force  and 
unreversed." 

§  1266.  ITeither  a  judgment  inter  paries,  nor  a  deed,  will 
operate  conchisively  as  an  estoppel,  unless  the  matter  of  estoppel 
-appears  on  the  record,  and  is  met  by  a  demurrer,  noi'  unless  it 
has  been  expressly  pleaded  by  way  of  estoppel,  at  least  where  an 
opportunity  of  so  pleading  it  has  been  afforded.  If  a  party  having 
such  an  opportunity,  does  not  avail  himself  of  it,  the  court  will 
conclusively  presume  that  he  has  intended  to  waive  all  benefit 
derivable  from  the  estoppel,  and  will  leave  the  jury  to  form  their 
own  conclusions  from  the  facts  presented  to  them  in  evidence. 
If,  indeed,  no  opportunity  has  arisen  for  pleading  the  matter  of 
estoppel  in  bar,  it  would  seem  on  principle,  that  an  estoppel  by 
record  or  by  deed  ought  to  be  binding  when  offered  in  evidence.' 
But  a  judgment  in  revi  is  held  to  be  conclusive  if  not  pleaded.^ 
A  plea  of  estoppel  admits  the  cause  of  action,  and  if  the  estoppel 
fails,  judgment  follows  in  due  course  against  the  defendant.^ 

§  1267.  "The  effect  of  a  former  judgment,  if  such  judgment 
is  admissible  in  evidence,  under  the  pleadings,  cannot  depend 
upon  tlie  form  of  the  pleadings.  If  the  judgment  be  a  fact 
relied  upon  in  avoidance  of  the  action,  it  must  be  set  forth  in  the 
answer.     Such  a  judgment,  of  a  peculiar  nature,  is  a  discharge  in 

*  Hannaford  v.  Ilunu,  2  Cut.  &  P.  St.  345  ;   NowLiu   v.   Gibson,    13   Ir. 

148;  Magrathv.  ILirdy,  4Bing.  (N.  C.)  Law  R.   5;   Matthew  v.   Osborne,  13 

782;   Co.   Lit.  352,  a. ;  R.  v.  Hebden,  Com.  B.  919;  Doe  v.  Wright,  10  A.  & 

And.  389;   Doc  v.    Lloyd,  5  Bing.  (N.  E.  703;  S.  C,  6  Scott,  627;  Howard  v. 

C.)657;  Bradley  v.  Beckett,  7  M.  &  Gr.  3Iitche]l,  14  Mass.  242;   Bartholomew 

994;   Ontrara   v.    Morewood,   3  East,  v.  Candee,  14  Pick.  167;  Carpenter  v. 

364;  Taylor  v.   Needham,   2  Taunt.  Buller,    8    M.   &  W.    213;    Potts  v. 

278;  Smyth  v.  Wilson,  2  Jebb.  &  Sy.  Nixon,  5  1.  R.  C.   L.  45;  Freeman  v. 

660;   Harper  v.  Hooper,  McC.  Exch.  Cooke,  2  Ex.  R.  062;  S.  C,  6  Dowl. 

509;   Cleaton  v.    Chambliss,  6  Rand.  &,  L.   198;    Howard   v.    Mitchell,  14 

86;   Adams   v.   Barnes,  17  Mass.  368;  ]Mass.  241;  R.  v.  Blackeraore,  3  Den. 

Picquet    v.    McKay,    2  Blackf.    405;  410;  R.  v.  Hanghton,  1  E.  &  B.  512. 

Vooght   V.    Winch,    2   B.   &  A.  662;  '^  R.  v.  St.  Pancras,  Peake  N.  P.  C. 

Doe  V.    Hnddart,  2  C.  M.  &  R.  816;  219;   Cammell   v.  Sewell,  3  H.  &  N. 

S.  C .,  5  Ty r.  846 ;  Feversham  v.  Emer-  61 7. 

son,  11  Exch.  385;   Dimes  v.    G.  J.  ^  Whittemore  v.  Stephens,  48  Mich. 

Canal  Co.,  9  Q.  B.  469;  Long  v.  Long,  573. 
5  Watts,  103;   Smith  v.   Elliott,  9  Pa. 


1416  Estoppel. 

bankruptcy  or  insolvency.  But  if  the  judgment  be  an  adjudica- 
tion between  tlic  same  parties,  and  ai^jainst  the  plaintiff,  of  issues 
whicli  tend  directly  to  dispi'ove  the  allegations  contained  in  the 
declaration,  then  it  is  admissible  in  evidence  under  an  answer 
denying  those  allegations.  A  former  judgment,  if  rendered 
upon  the  merits,  constitutes  an  absolute  bar  to  a  subsequent 
action  for  the  same  cause  of  action,  between  the  same  parties. 
The  parties  are  concluded  by  the  judgment,  not  only  upon  all 
the  issues  which  were  actually  tried,  but  upon  all  issues  %vhich 
might  have  been  tried  in  the  former  action  ;  so  that  a  new  action 
for  the  same  cause  of  action,  between  the  same  parties,  cannot  be 
maintained  or  defended  on  grounds  which  might  have  been 
tried  or  determined  in  the  former  action.  But  when  the  second 
action  between  the  same  parties  is  upon  a  different  cause  of 
action  from  the  first,  then  the  judgment  in  the  former  action  is 
conclusive  only  upon  those  issues  which  were  actually  tried  and 
determined.  What  these  issues  were  may  appear  from  the 
record,  or  may  not ;  but  w^hen  extrinsic  evidence  is  necessary  in 
order  to  determine  what  issues  were  actually  tried  and  deter- 
mined, or  to  determine  the  identity  of  the  parties  or  of  the  sub- 
ject matter,  such  evidence  must  be  submitted  to  the  jury,  with 
appropriate  instructions ;  and  only  such  issues  as  they  find  by 
evidence  to  have  been  actually  tried  and  determined,  and  on 
which  the  judgment  was  rendered,  or  such  issues  as  by  reasoning 
are  essential  to  and  necessarily  involved  in  the  forn)er  verdict 
and  judgment,  are  to  be  considered  as  conclusively  determined 
between  the  parties.  It  may  be  that  in  the  former  action  there 
were  distinct  defenses  or  distinct  gi-ounds  on  which  it  might 
have  been  maintained,  and  that  evidence  was  introduced  and 
submitted  to  the  jury  on  more  than  one  issue,  and  that  a  general 
verdict  was  returned,  on  which  judgment  was  entered,  so  that  it 
becomes  impossible  to  determine,  in  a  subsequent  action,  either 
by  reasoning  or  by  evidence,  what  issues  were  actually  tried  and 
determined  in  the  former  action.'" 


1  Foye  V.  Patch,   182    Mass.    105;  79  Ind.  93;  Hartley  v.  Gregory,  9  Neb. 

Burien   v.    Shannon,    99    Mass.    209;  279;   Hawks  v.    Truesdoll,   99   Mass. 

Benton  v.    Burgot,    3   B.   &,   C.  235;  557;   Krutsinger  v.    Brown,    ;2    Ind. 

Griffin  v.  Wallace,  GG  Ind.  410;   Lea  46(5;  Cromwell  v.    Sac,   94  U.  S.  351; 

V.  Len,  99  Mass.  493;  Brown  v.  Cain,  Davis  v.   Brown,  94  U.  S.  423;  Russell 


How  Made  Available.  1417 

When  the  grounds  of  the  judgment  appear  by  tlie  record, 
they  must  be  proved  by  the  record  alone.  Where  the  record  of 
a  case  fails  to  show  the  ground  upon  which  judgment  therein 
was  rendered,  a  resort  may  be  had  to  the  next  best  evidence. 
Oral  testimony  may,  for  that  purpose,  be  received  in  support  of 
a  plea  in  bar  or  under  the  general  issue.  The  fact  that  the  form 
of  action  in  the  two  cases  is  different  does  not  affect  the  ques- 
tion/ The  whola  record  should  be  produced  in  order  that  the 
court  may  be  able  to  determine  whether  in  the  prior  action  the 
court  rendering  the  judgment  had  jurisdiction,  and  also  to  enable 
it  to  construe  the  judgment  in  the  light  of  all  the  proceedings  on 
which  it  is  founded,  and  to  determine  what  the  issue  was.''  A 
part  of  a  record  or  a  record  which  does  not  show  service  or  a 
waiver  thereof  is  inadmissible  in  a  subsequent  suit  between  the 
same  parties  or  their  privies.'  So  a  record  of  a  judgment  refer- 
red to  in  a  finding  by  a  court  from  which  an  appeal  is  taken, 
cannot  be  set  up  as  an  estoppel,  where  the  record  is  not  set  forth 
and  the  finding  is  silent  as  to  the  ground  of  the  decision.*  In  an 
action  upon  a  promissory  note,  by  tlie  assignee,  the  plaintiff  put 
in  evidence  a  judgment  recovered  by  him  against  the  maker,  and 
a  summons  showing  the  commencement  of  the  suit  which  resulted 
in  the  judgment ;  but  omitted  to  introduce  any  other  part  of  the 
record.  Held,  that  as  this  did  not  show  that  the  judgment 
introduced  was  upon  the  note  in  suit,  the  evidence  was  insufficient 
to  bind  the  assignor.^  Where  tlie  party  relies  in  defense  upon 
an  agreement  under  which  a  former  action  for  the  same  cause 

was  dismissed,  settled,  or  released,  he  must  raise  such  defense  by 

*     .       .  . 

plea,  or  it  will  not  be  available  as  a  bar.^     But  where  upon  facts 

v.Place,94  U.S.  606;  Vooghtv. Winch,  458;  Bryan  v.  Malloy,  90  K  C.  508; 

2  B.  &  A.  663;  Outram  v.  Morewood,  Brady  v.  Pryor,  64  Ga.  691. 

3  East,  345;  Hopkins  v.  Lee,  6  Wheat.  '  Harryman  v.  Roberts,  53  Md.  64. 
109;  Fairmau  v.  Bacon,  8  Conn.  418;  «  Harper  v.  Rowe,  53  Cal.  333; 
Gray  V.  Ping-ry,  17  Vt.  419;  Goodenow  Donald  v.  McKinnon,  17  Fla.  746; 
V.  Litchfield,  59  Iowa,  226;  Davis  v.  Adams  v.  Olive,  62  Ala.  418;  Avon, 
Talcott,  14  Barb.  611;  Aiken  v.  Peck,  «fec.  Co.  v.  Andrews,  30  Conn.  476. 
22Vt.  250;  Davenport  V.  Barnett,  51  ^  Carrick  v.  Armstrong,  2  Cold, 
Ind.  329;  Merch.  &c.  Lme  v.  Lyon,  12  265;  Muller  v.  Rhuman,  62  Ga.  332.  ., 
F.  R.  63 ;   Althrop  v.  Beckwith,  14  ^  U.  S.  v.  Lane,  8  Wall.  185. 

III.  App.  638;  Young  V.  Pritchard,  75         ^  Miller  v.    Deaver,   30  Ind.    371; 
Me.  513;    Stewart    v.  Beck,   90  Ind.      Crandall  v.  Gallup,  12  Conn.  365. 

e  Halderman  v.  U.  S.,  91  U.  S.  584. 


1418  Estoppel. 

disclosed  by  tlie  pleadinc;s  an  estoppel  is  shown,  the  adversary 
party  may  take  advantai>;e  of  such  estoppel  without  pleading  it 
by  replication,  and  witliout  making  affirmative  proof  of  the  fact.' 
Nov  is  it  important  that  an  estoppel  or  bar  should  exist  before 
the  commencement  of  the  action,  the  first  judgment  rendered 
merges  the  cause  of  action  and  it  will  be  conclusive  if  properly 
pleaded.* 

§  1268.  The  estoppel  of  a  judgment  only  binds  parties  and 
privies,'  and  does  not  extend  to  those  who  are  strangers  in  person 
and  estate,  excejit  in  those  cases  where  the  suit,  in  which  the 
judgment  is  rendered,  partakes  of  the  nature  of  a  proceeding  in 
rem.  A  recovery  against  a  vendee  in  possession  will  not  bind  a 
vendor,*  so  a  judcrment  for  or  against  a  garnishee  in  an  attach- 
ment issued  by  one  creditor,  cannot  be  pleaded  as  an  estoppel  to 
a  subsequent  attachment  by  another  creditor  of  the  defendant  in 
attachment  for  the  same  debt,  because  the  parties  are  different, 
and  there  is  no  such  privity  as  to  bring  the  second  proceeding 
within  the  estoppel  of  the  first. ^  So,  a  judgment  against  one 
co-partner,  co  contractor,  co-obligor,  will  not  be  conclusive  in  a 
subsequent  action  in  which  another  joined,  because  it  would  be 
unjust  to  bind  him  bj  the  result  of  a  proceeding  where  he  had 
no  opportunity  of  cross-examining  the  witnesses  or  making  a 
defense,"  unless  the  plea  shows  that  the  judgment  was  recovered 
on  a  ground  wdiicli  operated  as  a  discharge  to  all.^  A  pai-ty 
pleading  an  estoppel  must  be  one  who  was  adversely  affected  by 

'  Scott  V.  Luther,  44  Iowa,  570;  Lee  Lawrence    v.    Haines,   5    N.  41.    33; 

V.  Summers,  2  Oreg.  260.  Slieldou  v.«Wliite,  35  Me.  253;  "Wanzer 

2  Morgan  v.  Barker,    2G    Yt.    G02;  v.    De  Baum,    1    E.   D.    Smith,   261; 
Ante,  ^j!j.  Bennett  v.  West,  2  N.  H.  32  :  Fraser 

3  Decour  v.  Morrison,  2  Gratt.  250;  v.  Council,  19  S.  C.  384. 

Greely  v.  Smith,  1  3L  &  W.  181;  Bank  *  Warren  v.  Cochran,  27  N.  H.  539. 

V.    Bahcock,    3   Uill,   152;   Leland  v.  ^  Breading  v.  Siegworth,  29  Pa.  St 

Touscy,     6    Hill,     327;     Chirac     v.  396;  Tarns    v.  Bullitt,  35  Pa.  St.  308, 

Reiuacker,  11  Wheat.  286;  Alexander  «  Carlisle  v.  Chamberlain,  26  N.  H. 

V.  Walter,  8  Gill,  239;  Sergent  v.  Sal-  540;  Bank  v.  Bobinson,  13  Ark.  214; 

moud,  27  Me.  539;  Cecil  v.  Cecil,  19  McLelland   v.  Ridg\va3^  12   Ala.  482; 

Md.  72;  Moss  V.  McCullough,  5  Hill,  Sturges  v.  Beach,  1  Conn.  507;   Hud- 

134:  Parsons  v.  Copeland.  33  ^le.  370;  son  v.  Robinson,  4  M.  &  S.  482. 

Trammell  v.  Thummond,  17  Ark.  '  Phillips  v.  Ward,  2  H.  &  C.  716. 
203;  Whiting  v.  Ins.  Co.,  15  Md.  297; 


How  Made  Available.  1419 

tlie  act  wliich  constitutes  it.  A  surety,  entitled  by  subrogation 
to  the  rights  of  the  liolder  of  a  note,  may  avail  himself  of  an 
estoppel  which  might  have  been  pleaded  by  the  holder.^ 

§  1209.  A  judgment  in  one  action  to  be  an  estoppel  in 
another,  must  be  averred,  and  when  not  apparent  it  must  be 
proved  to  have  been  rendered  on  the  merits,  as  well  as  for  the 
same  cause  of  action.^  A  plea  may  be  good  whicli  shows  this 
with  substantial  accuracy,  Mdthout  being  certain  in  every  particu- 
lar,* and  it  will  be  enough  to  set  forth  a  prior  recovery  between 
the  same  parties,  for  the  recovery  of  the  same  property,  without 
averring  that  the  recovery  was  for  the  same  conversion.^  That 
the  former  decision  was  on  technical  grounds,  and  did  not  touch 
tlie  merits  of  the  controversy,  will  be  immaterial,  unless  the  pro- 
ceeding was  one  in  which  they  could  not  be  heard  or  determined ; 
a  party  who  fails  to  sustain  his  case  by  the  proper  evidence  and 
allegations  must  submit  to  the  consequence  of  his  negligence,  and 
cannot  have  relief  in  another  suit."  The  same  result  will  follow 
"when  the  failure  to  make  a  good  defense  arises  from  a  mistaken 
impression  that  the  matter  will  remain  open,  and  may  be  the 
foundation  of  a  subsequent  suit.  So,  a  judgment  rendered  on  a 
question  of  law,  wlien  the  facts  are  admitted  by  demurrer,  or 
case  stated,  Avill  estop  a  renewal  of  the  controvei'sy  on  the  same 
ground.'  A  defendant,  relying  upon  the  defense  that  the  same 
matter  was  in  issue  and  deterniined  in  a  former  suit,  should  set 
forth  so  much  of  the  former  proceeding  as  will  show  that  the 
same  point  was  then  in  issue  and  determined,  and  should  aver 
that  the  allegations  as  to  the  title  were  substantially  the  same  in 
the  second  bill  as  in  the  first.*     The  correctness  of  a  judgment 

1  Cuttle  V.  Brockway,  32  Pa.  St.  45;  Miss.  584;   Smith  v.  Smith,  79  N.  Y 

Miller  v.  Holman,  1   Grant  Cas.  243.  634;  Young  v.  Pritclmrd,  75  Me.  513. 

^  Campbell  v.  Goodall,  8  111.  266.  4  Shields  v.  Taylor,  21  Miss.  127. 

3  Gieely  v.  Smith,  3  W.  &  M.  236;  '  Eversole  v.  Plank,  17  Ohio,  61. 

Taylor  v.  Barron,  35  N.  H.  484;  Drea  «  Gray     v.    Gililliau,    15     111.    454; 

V.  Carriveau,  28  Minn.  280;  Campbell  Carter  v.  Groat,  6   Johns.  168;   Jones 

V.  Butts,  3   N.  Y.  173;    McKnight   v.  v.  Screven,  8  Johns.  453. 

Taylor,  4  Barb.  36;  Baxter  v.  Aubrey,  ''  Perkins  v,  Moore,  16  Ala.  9;  Val- 

41    Mich.    13;   Hopkinson  v.  Shelton,  landiugham  v.  Ilyan,  17  111.  25;  Robin- 

37  Ala.  306;    Lockwood   v.  Wildman,  son  v.  Howard,  5  Cal.  423;   Birkhead 

13   Ohio,  450;    Heatherly   v.  Iladley,  v.  Brown,  5  Sandf.  167. 

2   Oreg.  269;    Goddard   v.  Benson,  15  «  Marvin  v.  Hampton,  18   Fla.  131; 

Abb.  Pr.  191 ;  Johnson  v.  White,   21  Vance  v.  Olinger,  27  Cal.  358. 


1420 


Estoppel. 


cannot  be  impeached  on  the  ground  that  the  law  \ras  mistaken 
by  tlie  court,  or  tlie  facts  wrongly  found  by  tlie  jury,  because  the 
proper  remedy  is  by  bill  of  exceptions  or  motion  for  a  new  trial, 
and  any  injury  which  results  from  a  failure  to  it  must  be  imputed 
to  the  laches  of  the  injured  party,  and  not  to  the  tribunal  which 
decided  against  him.' 


§  1270.  Although  a  judgment  recovered,  if  for  the  same  cause 
of  action,  and  between  parties  substantially  the  same,  will  be 
admissible  in  evidence,  yet,  in  order  to  render  it  conclusive  as  an 
estoppel,  it  should,  if  the  opportunity  presents  itself,  be  so 
pleaded.'  The  proper  requisites  to  a  plea  of  judgment  recovered 
are  thus  specified  by  Vinnins,  lib.  4,  tit.  13,  §  5 :  IIcbc  autem 
exceptio  {rei  judicatce)  non  aliter  genti  obstat  quam  si  eadem 
quoBstio  inter  easclem personas  revocetur  y  itaqueita  denimn  nocet 
si  omnia  sint  eadem^  idem  corjnis,  eadem  quantitas^  idemjns, 
eadem  causa  petendi,  eademque  conditio personarum^  A  judg- 
ment recovered  will  be  admissible  as  evidence,  not  only  between 
the  same  parties,  if  suing  in  the  same  right,*  but  likewise  between 
their  privies,  whether  in  blood,  law,  or  estate :"  and  a  judgment 
will  be  evidence  between  those  who,  although  not  nominally,  are 


'  Bakcv  V.  Rand,  13  Barb.  152; 
Waugh  V.  Jobnsou,  ; 

Miles  V.  Knott,  12  G.  &  J.  442;  Clark 
Y.  Bryant,  16  Md.  172;  Rogers  v. 
Evans,  8  Ga.  143;  Kelly  v.  Pike,  5 
Cush.  484;  ]\Iarsli  v.  Pier,  4  Rawlc, 
288;  Merviue  v.  Parker,  18  Ala.  241; 
Barney  v.  Patterson,  6  H.  &  J.  182; 
Manlon  v.  Iloyt,  43  ild.  254;  Brown 
V.  Isbell,  11  Ala.  109;  Elliott  v. 
Knott,  14  :Md.  121;  Schley  v.  Mayor, 
29  3Id.  34;  Rogers  v.  Rogers,  15  B. 
Mou.  3G4;  ChesTnut  v.  Marsh,  12  111. 
173;  Lloyd  v.  Barr,  11  Pa.  St.  41. 

2  Stroder  v.  Seaton,  2  Cr.  M.  A:R.731 ; 
Doe  V.  Wright,  10  A.  &  E.  763;  God- 
dard's  Case,  1  Co.432;  Palmer  v.  Ekins, 
2  Str.  817;  Janes  v.  Landon,  1  Cro. 
Eliz.  36;  Doe  v.  Welsman,  2  Exchq. 
368;  Wilkinson  v.  Kirby,  15  C.  B.430; 
Navigjitiou  Co.  v.  Guillou.  11  M.  & 
TV.  877;  Litchfield  v.  Ready,  5  Exchq. 


9n9;  Spcake  v.  Richards,  Hob.  207; 
Fevershain  v.  Emerson,  11  Exchq. 
385;  Young  V.  Raincock,  7  C.  B.  310; 
Doe  V.  Iluddart,  2  C.  M.  &  R.  316; 
Coxv.  Cannon,  4  Bing.  (N.  C.)453; 
Ashpitel  v.  Bryan,  3  B.  ifc  S.  474; 
Gregg  V.  AA'ells,  10  A.  &  E  90; 
Robinson  v.  Robinson,  L.  R.  2  P.  D.75; 
Trevivan  v.  Lawrence,  1  Salk.  276; 
IMagrath  v.  Hardy.  4  Bing.  (N.  C.)783; 
Freeman  v.  Cooke,  2  Exchq.  654; 
:\Ivirray  v.  Murray,  6  Greg.  23;  Wil- 
son V.  Butler,  33  E.  C.  L.  950. 

3  Ricardo  v.  Garcias,  12  CI.  &  Fin. 
368;  JS^elson  v.  Couch,  15  C.  B.  (N. 
S.)  99. 

*  Outram  v.  Jlorewood,  3  East,  346; 
Com.  Dig.  Estoppel  (C). 

*  Trevivan  v.  Lawrence,  1  Salk.  276; 
^lagrath  v.  Hardy,  4  Bing.  (X.  C.)  782; 
Rex  V.  Hebden,  And.  389;  Locke  v. 
Norborne,  3  Mod.  14. 


How  Made  Available.  1421 

really  and  substantially  the  same  parties.^  If  there  be  a  breach 
of  contract  or  wrong  done,  or  any  other  cause  of  action,  by  one 
against  another,  and  judgment  be  recovered  in  a  court  of  record, 
the  judgment  is  a  bar  to  the  original  cause  of  action,  because  it  is 
thereby  reduced  to  a  certainty,  and  the  object  of  the  suit  attained 
so  far  as  it  can  be  at  that  stage,  and  it  would  -be  useless  and  vex- 
atious to  subject  the  defendant  to  another  suit  for  the  purjDose  of 
obtaining  the  same  result,"  provided  the  cause  of  action  in  the 
two  suits  is  identical.^  Hence  the  legal  maxim,  Transit  in  rem 
judicatum,  the  cause  of  the  action  is  changed  into  matter  of 
record,  which  is  of  a  higher  nature,  and  the  inferior  remedy  is 
merged  into  the  higher.  This  appears  to  be  equally  true  where 
there  is  but  one  cause  of  action,  whether  it  be  against  a  single 
person  or  many.  The  judgment  of  a  court  of  record  changes  the 
nature  of  that  cause  of  action,  and  prevents  its  being  the  subject 
of  another  suit,  and  the  cause  of  action  being  single,  cannot  after- 
wards be  divided  into  two. 

§  1271.  A  judgment  recovered  will  be  evidence  whenever  the 
cause  of  action  is  the  same,*  although  the  form  of  the  second 
action  be  different  from  that  of  the  first  ;^  and  the  record,  when 
produced,  must  be  such  as  to  show  on  its  face  that  the  cause  of 
action  in  the  second  case  may  be  the  same  as  that  for  which  the 
judgment  was  recovered  in  the  former  action."  A  recovery  in 
trover  will  vest  the  property  in  the  chattel  sued  for  in  the 
defendant,  and  will  be  a  bar  to  an  action  for  trespass  in  the 
taking ;'  and  '•  If  two  jointly  convert  goods,  and  one  of  them 

1  Kiunersley  v.  Orpt^,  2  Doug.  517;  *  Nelson  v.  Couch,  83  L.  J.  C.  P. 
Simpson  V.  Pickering,  1  Cr.  M.  &  R.  46;  Williams  v.  Thacber,  1  B.  &  B. 
529;  Strudt  v.  Boviugdou,  5  Ep.  56;  514;  Hopkins  v.  Freeman,  13  M.  & 
Hancock  v.  Welsh,  1  Stark,  (N.  P.)  C.  W.  372;  Guest  v.  Warren,  9  Exchq. 
347;  Ehle  v.  Bingham,  7  Barb.  494;  379;  Dunckle  v.  Wiles,  5  Deuio,  303; 
Case  V.  Reeve,  14  Johns.  79;  Tate  v.  Felter  v.  Beal,  1  Lord  Raym.  339; 
Hunter,  8  Stiobh.  Eq.  13(J.  Slade's  Case,  4   Co.   94  ;    Phillips  v. 

2  King  V.  Hoare,  13   M.  &   W.  504;  Berrymau.  1  Doug.  288. 
Biickland   v.    Johnson,   15   C.  B.  163;  ^  Foster  v.  Allanson,  2  T.    R.    483  ; 
Hitchin   v.    Campbell,    3    Wils.    308;  Pease  v.  Chaytor,  32   L.  J.  M.  C.  121. 
Stewart  v.  Todd,  n  L.  J.  Q.  B.  327.  «  Wadsworth   v.    Bentley,  23  L.  R. 

3  Slade's  Case,  4  Co.  94;  Phillips  v.  Q.  B.  3;  Ricardo  v.  Garcias,  12  CI.  & 
Berryman,  3  Dougl.  228;  Nelson  v.  F.  369;  Austin  v.  Mills,  9  Exchq.  288; 
Couch,  33  L.  J.  C.  P.  46;  S.  C,  15  C.  Jones  v.  Fales.  4  Mass.  245. 

B.  ^N.  S.)  99.  '  Smith  v.  Gibson,  Cas.  T.  Hardw. 


1422  Estoppel. 

receive  the  proceeds,  you  cannot,  after  a  recovery  against  one  in 
trover,  have  an  action  against  the  other  for  the  same  conversion, 
or  an  action  for  money  had  and  received  to  cover  the  vahie  of 
the  goods,  for  which  a  judgment  has  already  passed  in  the  former 
action.' 

§  1272.  If,  however,  it  be  doubtful  whether  the  second  action 
is  brought  j?r«9  eadem  causa^  it  is  a  proper  test  to  consider 
whether  the  same  evidence  would  sustain  both  actions,^  and  what 
was  the  particular  point  or  matter  determined  in  the  former 
action  ;  for  a  judgment  in  each  species  of  action  is  final  only  for 
its  own  purpose  and  object,  and  qiooad  the  subject  matter  adjudi- 
cated upon,  and  no  further.  For  instance,  a  judgment  for  the 
plaintiff  in  trespass  affirms  a  right  of  possession  to  be,  as  between 
the  plaintiff  and  defendant,  in  the  plaintiff  at  the  time  of  the 
trespass  committed,  but,  in  a  subsequent  ejectment  between  the 
same  parties,  would  not  be  conclusive  wirh  respect  to  the  general 
right  of  propert}'  in  the  locus  in^uo.  Where,  in  an  action  for 
the  stipulated  price  for  a  specific  chattel,  the  defendant  pleaded 
payment  into  court  of  a  sum,  which  the  plaintiffs  took  out  in  sat- 
isfaction of  the  cause  of  action,  it  was  held  that  the  defendant  in 
that  action  was  not  thereby  estopped  from  suing  the  plaintiff's  for 
negligence  in  the  construction  of  the  chattel.'  !Not  only  are  the 
facts  actually  decided  by  an  issue  in  any  suit,  but  caimot  be  again 
litigated  between  the  same  parties,  and  are  evidence  between 
them,  and  that  conclusive,  for  the  purpose  of  terminating  litiga- 
tion; but  so  likewise  are  the  material  facts  alleged  by  one  party 
which  are  directly  admitted  by  the  oj^posite  party,  or  indirectl}' 
admitted  by  taking  a  traverse  on  some  other  facts,  provided  that 
the  traverse  thus  taken  be  found  against  the  part}'  making  it. 
Thus,  where  tlie  plaintiff  sued  the  defendant  in  trover  for  the 
conversion  of  a  piano,  the  defendant  plead  in  bar  a  judgment  for 

319;  Buckland  v.  Johnson,  15  C.  B.  Wiat  v.  Essinton,  2LoidRaym,  1410; 

145;  Moor  v.    Watts,   1  Lord  Raym.  CI  egg  v.  Dearden,  12  Q.  B.  576;  Hun- 

614;  Vooght  V.  Winch,  2  B.  &  A.  662;  ter  v.    Stewart,  4  De  G.  F.  &  j:  178; 

Overton  v.  Harvey,  9  C.  B.  324;  Hunt  Gates  v.  Gorham,  3  Vt.  317. 

V.  Bates,  7  R.  I.  217.  ^  Rjggg  ^    Burbidge,  15    M.  &  W. 

»  Cooper  V.  Shepherd,  3   C.    B.  266;  598;  Mondel   v.    Steele,    8   M.  &  W. 

Adams  v.  Bougliton,  Aiidr.  18.  872. 

'Hadley  v    Green,   2  Tyr^\^  390; 


How  Made  Available.  1423 

costs  recovered  against  himself  on  submission  in  an  action  of 
replevin  for  the  piano,  wherein  the  parties  were  reversed,  and 
the  plea  was  non  cejpit  only.  The  plaintiff  demurs.  The  defend- 
ant contends  that  inasmuch  as  he  alleged  himself  to  be  the 
owner  of  the  piano  in  the  action  of  replevin,  and  the  plaintiff  did 
not  traverse  the  allegation,  but  impliedly  admitted  it  by  pleading 
simpl}^  non  ce])it^  he  cannot  now  claim  to  be  the  owner  himself, 
but  is  estopped  by  the  former  judgment.  We  think  the  argu- 
ment is  invalid,  for  the  reason  that  the  allegations  so  impliedly 
admitted  did  not  pass  into  judgment,  the  judgment  having  been 
rendered  for,  and  not  against  the  plaintiff.  To  make  the  admis- 
sion conclusive,  the  judgment  should  have  been  rendered  against 
him.' 

§  1270.  It  has  been  held  that  a  former  judgment,  upon  the 
some  cause  of  action,  was  inadmissible,  under  the  general  issue  in 
trespass  or  assumpsit.''  This  is  still  true  in  regard  to  actions 
founded  on  a  tort  or  trespass.'  But  in  this  country  a  former 
judgment  is  conclusive  between  the  same  parties  in  any  of  fhe 
forms  of  case  or  ejectment,  without  pleading  it,*  although  it  will 
not  be  conclusive  unless  the  circumstances  are  such  that  it  could 
not  have  been  pleaded.*  An  estoppel  will  therefore  be  conclusive 
in  evidence  whenever  there  has  been  no  opportunity  to  take 
advantage  of  it  in  pleading.* 

§  1274.  And  in  those  States  where  special  pleading  has  been 
abolished,  by  usage  or  statute,  estoppels  are  conclusive  in  evidence, 
although  not  pleaded.''    There  is  this  distinction  between  case  and 

1  Boilean  v.  Rutlin,   3  Exchq.  665;  v.  Emerson,  11  Exchq.  385;  "Woods  v. 

Buckmaster  v.  Meiklejohn,  8   Exchq.  Jackson,  8  Wend.  9. 

634;  Carler  v.  James,    13   M.    &  W.  ^  Fowler  v.    Hill,    10   Johns.     Ill; 

137;  Hult  V.  Morrell,    3  Exchq.    241;  Coles  v.  Carter,  9  Coweu,  691;  Brown 

Buikett   V.  Blanchard,  3   Exchq.   89;  v.  "Wilde,  12  Johns.  455. 

Mariauski   v.   Cairns,    1    ]Macq.    212;  ^  Gilchrist  v.   Ball.  8    Watts,    355; 

Mayor  v.  Queeu,  10  Q.  B.  511;  Sweet  Young  v.  Rummell,  2  Hill.  478;  Miller 

V.    Tattle.   14  N.    Y.    465;  Buck    v.  v.  Manice,  6   Hill,  114;  Wanu  v.  Mc- 

Rhodes,  11  Iowa,  348;  Cuttle  v.  Biock-  Nulty,  7  111.  355;  Johnson  v.  Pate,  90 

way,  32  Pa.  St.  45;  Holcomb  v.  Brick-  N.  C.  334. 

ey,  12  R.  I.  255.  *  Young  v.    Black,  5   Cranch,  565; 

«  Young  V.  Raincock,  7   C.  B.  310;  Robinson  v.  Town,  30  Ga.  618. 

Seymours  Case,  10  Coke,  970;  Gilbert  «  Sprague  v.  Waite,  19  Pick.  455. 

V.  Thompson,  9  Cush.  348 ;  Feversham  ^  Whitney  v.  Clarendon,  18  Vt.  252; 

Clink  V.  Thurston,  47  Cal.  21. 


1424  Estoppel. 

trespass  tliat  wliilc  nn  estoppel  in  one  must  be  pleaded,  it  is  con- 
clusive in  evidence  under  the  general  issue  in  the  other.' 
A  former  recovery  for  the  same  cause  of  action  is  an  absolute 
bar  under  a  general  plea  of  non-assumpsit,*  or  upon  the  plea 
of  nil  debet,^  while  it  has  been  held,  that  there  is  no  difference 
between  the  effect  of  a  judgment,  when  pleaded  and  when 
given  in  evidence,  in  those  actions,  like  trespass  on  the  case 
or  trespass  for  mesne  profits,  which  are  the  creatures  of  the 
law,  and  therefore  less  subject  to  strict  or  technical  rules  of 
pleading/  It  has  been  held  that  the  doctrine  that  actions  on  the 
case  or  trover  afforded  an  exception  to  the  general  rule,  requiring 
a  former  judgment  to  be  pleaded  was  unsound,  and  could  not  be 
reconciled  with  the  English  decisions.'  A  distinction  founded 
merely  upon  the  form  of  action,  is  too  narrow  and  technical  to 
rule  a  point  which  should  be  governed  by  general  and  liberal 
principles  of  policy  and  convenience  ;  and  if  the  defendant  can 
rely  on  a  former  judgment  as  a  bar  without  pleading  it  in  any 
caiee,  he  should  have  the  same  privilege  in  all.  And  accordingly 
a  defendant  was  permitted  to  give  a  judgment  in  his  favor  in 
evidence  under  a  traverse  of  the  plaintiff's  title  in  replevin,  with 
the  same  effect  as  if  it  had  been  pleaded. °  In  some  states,  under 
the  code  S3^stem,  a  former  judgment,  must,  in  common  with  all 
other   defenses,  be  set  forth   specially  in    pleading.'     Upon  the 

'  Y(mng  V.  Rummcll,   2  Hill,  268;  372:   Biirritt  v.  Belfy,  47  Conn.  323; 

Whitney  v.  Clarendon,'  18  Vt.  255.  S.  C.  B  Am.  R.  79;  Atkins  v.  Hudson, 

■  Reynolds   v.   Stanbeig,    20   Ohio,  19  Ind.  392;  Vooight  v.   Winch,  2  B. 

244;  King  V.  Chase,  15  KH.  13;  Gray  &   A.    662;    Cooley    v.    Braytou,    16 

V.    Gillilau,    15   111.    453:    Finlcy    v.  Iowa,  10;  Van  Orman  v.  Shafford,  16 

Ilambest,   30  Pa.  St.  190;   Carvill  v.  Iowa,    186;    Brazil  v.    Isham,  12  N. 

Garrigiies,  5  Pa.  St.  152;  Ins.  Co.  v.  Y.  9;  Lyon  v.  Talmadge,    14  Johns. 

Harris,  97  U.  S.  331;  Niles  v.Totman,  501;  White  v.  Bank,  6  Ohio,  528;  .lex 

3  Barb.  594;    Ridgway  v.  Cheqnier,  1  v.  Jacob,  7  Abb.  N.   9.  452;   Whitte- 

Cranch,  87;   Wann  v.  McNulty,  7  111.  more  v.  Stephens,  48  Mich.  573;  Bow- 

055;   Stafford   v.    Clark.  9  Moo.  724;  man  v.  Cudworth,  31  Cal.  153;  Sharos 

1  C.  &P.  403;2  Bing.  377.  v.    Minnock,    6   Neb.    377;   Brady  v. 

3  Welsch  V.  Lindo,  1  Cranch,  508.  Murphy,  19  Ind.  258;  Clink  v.  Thurn- 

4  Man  V.  Drexell,  2  Pa.  St.  202.  ton,  47'Cal.  21;  Ulhfelder  v.  Levy,  9 
=•  Miller  v.  Manice,  6  Hill,  114.  Mo.  607;  Vance  v.  dinger,  27  Cal. 
«  Marsh    v.    Pier,    4    Rawle,    279;  358;  Inman   v.   .lenkins,  3  Ohio,  276; 

George  v.  Gillespie,  1  Iowa,  241.  Ransom   v.  Stanberry,  22  Iowa,  334; 

'  Tanning  V.  Insurance  Co. ,  37  Ohio     Hendricks  v.  Decker,  35  Barb.  298; 

St.  346;  Krekeler  v.  Ritter,  62  N.  Y.      Slate  v.  Twaddle,  12  Nev.  17;  Graham 


How  Made  Available.  1425 

ground  that  the  code  furnishes  an  opportunity  to  plead  the  former 
adjudication,  the  object  of  requiring  pleadings  in  writing  is,  to 
advise  the  opposite  party  of  tlie  facts  constituting  their  respective 
claims  and  defenses.  This  object  is  defeated  by  allowing  the 
record  to  be  offered  in  evidence  without  notice  by  pleading,  that 
it  is  relied  oif,  after  the  defendant  had  offered  in  evidence  the 
facts  constituting  his  defense. 

"  The  former  adjudication  is  new  ^natter,  which  the  code 
practice  requires  should  be  pleaded.  It  is  matter  ex  post  facto, 
and  should  be  specially  pleaded,  so  that  the  court  may,  as  matter 
of  law,  determine  as  to  its  effect.  This  was  the  settled  rule  at 
common  law,  whenever  there  was  an  opportunity  to  plead  such 
former  adjudication.  The  code  having  furnished  that  opportunity 
to  plead  it,  we  think  the  record  was  inadmissible  as  evidence." 

• 

§  1275,  A  plea  of  estoppel  must  be  properly  framed  as  such, 
especially  in  opening  and  closing,  and  it  must  set  forth  a  claim 
that  the  plaintiff  should  not  be  admitted  to  make  use  of  what  the 
estoppel  would  exclude.  The  matter  of  estoppel  alleged  must  be 
material  and  traversable,  and  if  a  judicial  decision  is  relied  on 
thci'efor,  it  must  be  so  averred  ;  and  tlie  decision  must  have  been 
in  a  matter  coram  judlce.  It  is  based  on  a  judicial  act  which 
it  does  not  aver  as  matter  of  estoppel  in  itself,  but  merely  intro- 
duces as  evidence  and  by  way  of  argument  and  as  a  basis  for  a 
deduction,  presents  an  issue  which  is  a  matter  of  legal  inference 
only,  and  not  traversable.'  A  plea  of  estoppel  puis  darrein  con- 
timiance,  however  defective  in  frame  and  substance,  must  be 
entertained  if  defendant  rests  his  case  entirely  upon  it.^  It  is 
held,  that  a  judgment  may  be  given  in  evidence  by  the  plaintiff, 
only  when  the  defense  is  the  general  issue.     When  the  defense  is 

V.  Gordon,    1  Chip.   115;   Phillips  v.  Blandy   v.  Griffin,   3  Fish.  Pat.  Cas. 

Van  Schaick,  37  Iowa,  229;   Hopkins  609;  Picqiiet  v.  McKay,  2  Blackf.  465; 

V.    Sht'Uou,    1    Ala.    303;    Piercy    v.  San   Francisco   v.    Water  Works,  40 

Sabin,  10  Mo.  22;  R.  R.  Co.  v.  Harris,  Cal.  473;  IMcKnight  v.  Taylor,  I  Mo. 

8  Neb.  140;   Gray  v.   Massier,  17  Vt.  282;  Stewart  v.  IBeck,  90  Iud.45S. 

419;   Richards  v.   Hickman,    22  Ind.  '  Whittemore  v.  Stephens,  48  Mich. 

244;   Wood   v.    Nichols,  33  La.  Ann.  573. 

744;   Mnrray  V.  Murray,   6  Oreg.  20;  MVhittemore  v.  Stephens,  48  Mich. 

Lockwood  V.  Wildman,  13  Oliio,  430;  573. 
Vol.  I.— 90 


142G  Estoppel. 

by  special  plea,  the  matter  of  estoppel  must  be  set  up  in  a  special 
replication,' 

§  1270.  When  the  estoppel  already  appears  from  the  plead- 
ings on  cither  side,  it  need  not  be  set  out  again,  formerly  of 
record,  and  the  proper  course  is  to  demur  without  going  further. 
So,  where  a  plaintiff  declared  on  an  instrument  that  contained  a 
recital,  that  the  defendant  possessed  certain  shares  of  stock,  and 
defendant  craved  oyer,  and  then  denied  possession  of  the  stock  by 
plea,  it  was  held,  that  the  estoppel  was  apparent  on  the  face  of 
the  record,  and  might  be  taken  advantage  of  at  once  by  demurrer, 
without  replication.*  Estoppel  .igainst  an  estoppel  will  set  the 
matter  at  large ;  so,  when  an  issue  found  for  the  plaintiff  in  one 
action  is  found  against  him  in  another,  neither  will  be  conclusive, 
and  the  question  will  then  remain  open  for  decision.  But  to  pro- 
duce this  result,  it  nmst  appear  affirmatively,  and  not  by  mere 
argument  or  inference,  that  both  adjudications  were  identical,  or 
turned  on  the  same  point.^ 

§  1277.  Judgments  and  decrees,  as  estoppels,  conclude  parties 
and  privies  only.  The  grounds  on  which  persons  standing  in  the 
relation  of  jprimty  to  the  litigating  party  are  bound  by  the  pro- 
ceedings to  which  he  was  a  part}-,  is,  that  they  are  identified  with 
him  in  interest  ;  and  when  this  identity  is  found  to  exist,  all  alike 
are  concluded.  When,  therefore,  one  binds  and  obliges  that  the 
defendant  in  an  attachment  would  cause  the  property  levied  upon 
and  replevied  by  the  said  bond  to  be  forthcoming,  to  abide  the 
final  order  of  the  court  in  the  said  suit,  he  connects  liimself  in 
pfivity  with  the  proceedings  therein,  and  makes  the  record  of  the 
judgment  conclusive  evidence  against  him.  Whenever  the  mat- 
ter of  the  estoppel  is  apparent  on  the  face  of  the  record  advantage 
may  be  taken  thereof  by  demurrer."  In  an  action  on  a  bond,  if 
the  record  in  the  suit  on  the  bond  shows  that  a  recovery  was  had 
for  damages,  the  record  cannot  be  controverted,  and  a  pleading  in 

'  Hayes  V.  Ass.,  76  Va.  225;  Carroll         ■•Collins  v.    Mitchell,   5  Fla.  364; 

V.    Coliier.    23   Gratt.    309  ;   Davis  v.  Trimble  v.  Stott,  4  Biackf.  435;   Hill 

Thomas,  5  Leic^h,  1.  v.  Waterworks   Co.,  2  B.  &  A.  544; 

*  Bifkctt  V.  Bradlej-,  7  :\I.  &  G.  994;  Bowman   v.  Taylor,  2  A.  &  E.  278; 

]\Iill(,'r  V.  Elliott,  1  Carter,  484.  Beckett  v.    Bradlej',  7  M.   &  G.  994; 

■"'  ]Mersfrau  v.    Pearsall,    19   N.   Y.  iMcFarland  v.  Rogers,  1  Wis.  452. 
108. 


How  Made  Available.  1427 

another  action  which  attempts  to  controvert  it  is  bad  on  demur- 
rer.' If  to  a  plea  of  former  recovery  the  plaintijS  reply  that  the 
causes  of  action  are  not  the  same,  it  was  held  that  the  issue  was 
for  a  jury.^  The  jury  are  to  inquire  under  the  plea  of  res 
adjudicata,  whether  the  right  asserted  or  the  wrong  complained 
of,  is  virtually  or  substantially  identical  with  that  involved  in  the 
first  suit,  and  this  identity  is  determined  not  by  the  pleadings 
only,  but,  when  submitted  to  the  jury,  by  parol  proof.'  A  party 
who  has  been  unsuccessful  in  pleading  an  estoppel  is  not  after- 
wards precluded  from  confessing  and  avoiding  or  traversing  the 
allegation  of  his  adversary.*  An  answer  of  former  recovery  is 
bad,  which  merely  avers  that,  in  a  former  suit  upon  the  same  cause 
of  action,  the  defendant  by  agreement  recovered  judgment  for 
costs,*  or  that  the  parties  are  not  the  same  as  those  in  the  second 
suit,  if  the  first  was  decided  on  the  merits,  and  not  on  exception 
to  the  joinder  of  parties.^ 

§  127S.  In  an  action  for  trespass  for  breaking  and  entering  a 
warehouse,  and  taking  therefrom  certain  goods,  the  defendants 
pleaded  that  they  took  the  goods  by  virtue  of  legal  process,  as  the 
property  of  a  third  person,  and  that  they  broke  into  the  ware- 
house because  they  were  refused  admittance  upon  demand.  The 
plaintiffs  replied  that  the  goods  were  the  property  of  A.,  and  not 
of  the  debtor,  as  whose  they  were  then  taken  and  that  they  had 
received  the  goods  to  keep  for  A.  The  defendants  rejoined,  in 
estoppel,  that  A.  had  brougiit  an  action  of  trespass  against  them 
for  taking  and  carrying  away  the. same  goods,  and  that  issue  had 
been  joined  in  that  action  upon  the  question  of  A.'s  title  to  the 
goods,  and  that  judgment  had  been  rendered  thereon  in  favor  of 
the  defendants.  Held,  on  demurrer  to  this  rejoinder,  that  the 
matter  was  well  pleaded  as  an  estoppel,  and  that  the  defendants 
were  entitled  to  judgment.'  A  party  cannot  be  estopped  from 
pleading  the  general  issue,  nor  is  a  party  estopped  from  maintain- 


'  Sheppard    v.    BuUerfiold,    41    111.  »   Wliitehurst    v.    Rogers,   38    Md. 

77.  508. 

2  James  v.  Ins.  Co.,  6  Blackfd.  525;  «  Dana  v.  Bryant,  6  III.  104. 

Amsden  v.  R.  R.  Co.,  32  Iowa,  288;         '=  Reed  v.  Higgins,  86  Ind.  143. 
Rockwell  V.  Langley,  19  Pa.  St.  503.  «  Girardin  v.  Dean,  49  Tex.  243. 

'  Burton  v.  Wilkinson,  18  Vt.  186. 


1428  Estoppel. 

ing  :iii  action,  although  it  bo  in  violation  of  an  executory  agree- 
ment.' 

^  1279.  A  recovery  in  suit  upon  an  agreement,  wherein  the 
right  to  recover  depended,  by  the  pleadings,  upon  the  truth  of 
the  allegation  made  in  the  complaint,  and  denied  by  the  answer, 
that  the  ])laintiff  had  fully  performed  the  agreement,  was  a  bar 
to  an  action  brought  subsequently,  by  the  defendant  in  the  first 
wiit  against  tlie  defendant  thereon,  to  recover  damages  for  the 
alleged  non -performance  of  the  same  agreement. 

§  1280.  The  record  of  the  recovery  estops  the  defendant  from 
controverting  that  the  plaintiff  fully  performed  the  contract.' 
Aftei'  joinder  of  an  issue  of  fraud  in  obtaining  a  dischai-ge,  an 
estoppel  cannot  be  taken  advantage  of  against  the  party  pleading 
the  fraud ;  it  must  be  pleaded.^  A  party  is  not  estopped  from 
})Ieading  a  just  defense,  because  his  evidence  tends  to  prove  him 
guilty  of  fraud  in  relation  to  a  matter  on  which  his  defense  does 
not  lest.*  When  the  fact  which  concludes  the  defendant  from 
making  the  denial  appears  in  the  declaration,  the  estoppel  may 
bo  insisted  on  by  a  demurrer  to  the  plea,  by  which  the  same  mat- 
ter is  set  up  as  a  defense.^  It  is  held  in  Indiana,  that  in  order  to 
I'ender  a  former  recovery  an  estoppel  to  a  subsequent  suit, 
embracing  the  same  matter  in  controversy  with  the  first,  the 
judgment  must  be  sj)eeially  pleaded  as  an  estoppel. °  Where  a 
former  recovery  and  judgment  is  set  up  by  way  of  estoppel,  it 
must  be  on  a  precise  point  distinctly  in  issue.' 

§  1281.  A  party  who  is  in  laches  cannot  complain  of  the  neg- 
lect or  delay  of  his  adversary  arising  from  that  laches."  AVhere 
evidence  is  offered  of  facts  which  the  party  is  estopped  from 
pi'oviiig,  and  no  objection  is  made,  the  estoppel  is  waived."     If  a 

'Gibson    V.    Gibson,  15   Mass.  106;  Liiiuson  v.   Tremere,  1  A.  &  E.  793; 

Fry  V.  Cook.  3  Ark.  343.  Bowman  v.  Taylor,  3  A,  &  E.  278. 

•'  Davis  V.  Talcolt,   13  N.  Y.  184.  •*  Ficquet   v.    McKay,  3  Blackford, 

'  Sawyer  v.  Hoyt,  3  Tyler  (Vt.)  288;  4(io;  Stewart  v.  Peck,  90  lud.  458. 

Chew  V.  Moffatt,  6  Muaf.  120.  '  Riclimond  v.  Hays,  3   Pa.  St.  493; 

•>  Wood  V.  Kirk,  38  X.  H.  824.  Aiken    v.  Peck,  23  Vt.  355;  Smith  v. 

5  Smith  V.  Whittaker,   11    HI.  417;  Sherwood,  4  Con u.  376. 

Baiu^ford  v.  Smith,  Dyer,  196;  Kemp  ^  L")ansen  v.  Johnson,  1  Greeu,  364. 

V.  Goodall,    1  Ld.  Raymd.  1154;  Pal-  »  Hanson  v.  Buckner,  4  Dana,   251 
mer  v.    Ekins,   1   Ld.    Raymd.  1554; 


How  Made  Available.  1429 

party,  instead  of  taking  advantage  of  an  estoppel  by  demurrer  or 
plea,  takes  issue  on  the  matter  of  the  estoppel,  the  estoppel  is 
waived/  In  an  action  of  assumpsit  on  a  charter-party  made 
between  the  defendant,  described  in  the  declaration  as  the  owner 
of  the  ship,  and  S.,  the  plaintifl:,  merchant  and  freighter,  for  not 
taking  the  cargo  on  board,  the  plea  was  non-assumpsit.  The 
charter-party  stated  that  it  was  made  by  the  plaintiff,  as  agent  for 
the  freighter,  and  concluded  thus:  "This  charter-party  being 
concluded  on  behalf  of  another  party,  it  is  agreed  that  all  respon- 
sibility on  the  part  of  S.  &  Co.  ceases  as  soon  as  the  cargo  is 
shipped."  At  the  trial,  it  was  proved  that  the  plaintiff  was  the 
real  freighter.  Ileld^  that  the  plaintiff  was  entitled  to  sue  as 
principal,  notwithstanding  the  terras  of  the  charter-party.^  A., 
the  mother  and  guardian  of  certain  minors,  in  that  capacity 
released  certain  real  estate,  belonging  to  them,  to  B.  When  one 
of  the  minors  came  of  age,  he  sued  the  administrator  of  B.  in 
assumpsit  for  use  and  occupation,  and  it  was  held  that,  as  there 
was  no  privity  between  the  minors  and  B.,  they  could  not  main- 
tain tlieir  action.  In  an  action  of  trespass  by  the  minors  against 
B.,  it  was  held  that  B.  was  estopped  by  his  plea  in  the  former 
case  from  claiming  a  privity  of  contract,  and  he  was  adjudged  a 
wrongdoer.^ 

§  1282.  It  has  become  a  settled  practice,  in  declaring  in  an 
action  upon  a  judgment,  not,  as  formerly,  to  set  out  in  the  decla- 
ration the  whole  record  of  the  proceedings  in  the  original  snit,  but 
only  to  allege  generally,  that  the  plaintiff,  by  the  consideration 
and  judgment  of  that  court,  recovered  the  sum  mentioned  therein, 
the  original  cause  of  judgment 'having  passed  in  rem  judicatum. 

Technical  estoppels  must  be  pleaded  with  great  strictness,  but 
when  a  former  judgment  is  set  up  in  bar  of  a  pending  action,  or 
as  having  determined  the  entire  merits  of  the  controversy  involved 
in  the  second  suit,  it  is  not  requisite  that  it  should  be  pleaded 
with  any  greater  strictness  than  any  other  plea  in  bar,  or  any  plea 
in  avoidance  of  the  matters  alleged  in  the  antecedent  pleading. 
Reasonable  certainty  is  all  that  is  required  in  such  a  case,  whether 

'  Burdit  V.  Burdit,  2  A.  K.  Marsh.  2  Schmalz  v.  Avery,  3  E.   L.  &  E. 

143;  Keel  v.  Ogden,  3  Dana,  43;  Chew  391;  S.  C,  16  Q.  B.  655. 

V.  Moffatt,  6  Munf.  120;  Brinsmaid  »  piardy  v.  Williams,  11  Ired.  499. 
v.  Mayo,  9  Vt.  31. 


14B0  Estoppel. 

the  test  is  applied  to  the  declaration,  plea,  or  replication,  as  the 
party  whose  ])leadinf>;  is  drawn  in  qnestion  cannot  anticipate  what 
tlie  response  will  be  when  he  frames  his  pleadings.'  A  judgment 
is  not  a  written  instrument  within  the  meaning  of  the  statute 
requiring  copies  of  written  instruments  which  are  the  foundation 
of  an  action  or  defense  to  be  set  out.*  An  allegation  that  the 
causes  of  action  in  the  two  suits  were  identical  is  sufficiejit,  with- 
out explicitly  describing  them.'  It  is  a  general  rule  of  pleading 
that  matter,  which  should  come  more  properly  from  the  other 
side,  need  not  be'  stated.  In  other  words,  it  is  enough  for  each 
party  to  make  out  his  own  case  or  defense.  He  suflBciently  sub- 
stantiates the  charge  or  answer  for  the  purpose  of  pleading,  if  his 
pleading  establish  a  jprima  facie  charge  or  answer.  He  is  not 
bound  to  anticipate,  and,  therefore,  is  not  compelled  to  notice  and 
remove  in  his  declaration  or  plea  every  possible  exception, 
answer,  or  objection,  which  may  exist,  and  with  which  the 
adversary  may  intend  to  oppose  him.  It  is  usual  to  allege  that 
the  judgment  still  remains  in  full  force  and  effect,  and  that  the 
plaintiff  has  not  obtained  execution  or  satisfaction  thereof ;  but 
this  allegation  is  unnecessary.  A  party  in  pleading  a  judgment 
is  not  bound  to  allege,  in  addition  to  the  statement  of  its  recovery 
or  rendition,  that  it  still  remains  in  full  force,  etc.,  because  when 
rendered  it  is  presumed  to  remain  in  force  until  the  contrary 
appears.  Presumptions  of  law  need  not  be  stated.  If  a  judg- 
ment pleaded  has  been  set  aside  or  reversed,  or  has  been  rendered 
by  a  court  without  jurisdiction,  the  other  party  can  avail  himself 
of  the   fact  in   response   to  the  party  pleading  the  judgment.* 

J  Gray  V.  Pingry,  17  Vt.   419;  Per-  27  Miss.   744;  Wyant  v.    Wyant,   38 

kins  V.  Walker,  19  Vt.  144;  Shelly  v.  lud.  48.  Blake  v.  Burley,  9 Iowa,  592; 

Wright,  Willes,  9;  Mass.  v.  Shannon,  Biddle  v.  Wilkins,    1    Pet.  692;   Rey- 

1  Ililt.  175;  Aurora  v.  West,  7   Wall.  nolds  v.    Fentou,  8  C.  B.  187;  Smith 

821.  Blake  v.  Burley.  9  Iowa,  592.  v.  Nicholls,  5  Bing.  (N.  C.)  208;  Tal- 

■^  Lytle  V.  Lylle,  37  liid.  281 ;  Camp-  madge  v.  Chappel,  IG  Mass.  71 ;  Mil- 
bell  V.  Cross,  39  Ind.  155;  Wyant  v.  ler  v.  White,  57  Barb.  504;  Caldwell 
Wyant,  38  Ind.  48.  v.  Bichards,  2  Bibb,  331;  Williams  v. 

3  Wythe  V.  Salem,  4  Sawyer,  88;  Preston,  3  J.  J.  ]Marsh.  600;  Robert- 
Perkins  V.  Moore,  16  Ala.  17.  sou  v.  Struth,  5  Q.  B.  941;  Burnes  v. 

"  Murphy  v.    Orr,  32  111.  489:  Rog-  Simpson,  9    Kas.    663;    Downer    v. 

ers  V.  Odell,  39  N.  H.  452;  Campbell  Dana,  22  Vt.  337;  Butcher  v.   Bank, 

V.  Cross,  39  Ind.  155  ;  Bissell  v.Whee-  2  Kas.  70;  Spaulding  v.   Baldwin,  31 

lock,  11  Cush.  277;  Stephens  v.  Roby,  Ind.    376;    Pennington  v.  Gibson,  16 


How  Made  Available.  1431 

Objections  that  the  court,  in  whicli  the  judgment  is  rendered, 
liad  not  jurisdiction  over  the  subject  matter  of  the  suit,  or  that 
the  judgment  upon  which  suit  is  brought  is  absolutely  void,  may 
be  pleaded  in  bar,  or  may,  in  some  cases,  be  given  in  evidence, 
under  the  general  issue,  in  an  action  brought  upon  the  judgment. 
But  the  general  rule  is  that  there  can  be  no  averment  in  pleading 
against  the  validity  of  a  record,  though  there  may  be  against  its 
operation  ;  and  it  is  upon  this  ground  that  no  matter  of  defense 
can  be  pleaded  in  such  case  which  existed  anterior  to  the  judg- 
ment.' In  the  trial  of  a  cause,  it  is  competent  for  either  party  to 
prove,  by  parol  testimony,  that  the  precise  question  in  dispute 
was  decided  in  a  previous  action  between  the  same  parties,  and 
thus  create  an  estoppel." 

§  1283.  It  is  necessary  to  plead  a  judgment  of  a  limited  juris- 
diction ;  it  is  held  that  it  cannot  be  pleaded  in  bar,  or  proved  as 
an  estoppel,  while  it  is  pending  on  appeal.'  But  where  the  only 
ground  alleged  for  annulling  said  judgment  be  error  of  decision 
upon  the  issues  involved,  the  decision  upon  those  issues  by  a 
competent  court,  operates  as  a  conclusive  estoppel  between  the 
parties  before  the  court  as  long  as  it  remains  unreversed.* 

§  128i.  The  mode  in  which  this  class  of  estoppels  is  made 
available  may  be  illustrated  by  reference  to  the  following  cases  : 
In  an  action  to  recover  damage  for  breach  of  an  alleged  contract 
for  the  sale  of  real  estate,  the  defendant  pleaded  that  in  an  action 
brought  by  him  against  the  plaintiflE  and  others  to  quiet  his  title 
to  the  land  in  question,  the  said  plaintiff,  for  an  equitable  defense,, 
set  up  the  contract  in  question  and  prayed  for  a  specific  perform- 
ance, and  that  judgment  was  rendered  against  him  ;  and  the 
court  found  accordingly.  Held,  the  judgment  rendered  in  the 
former  case  is,  as  a  plea,  a  bar,  and,  as  evidence,  conclusive  in 

How.    G5;  Holmes  v.    Campbell,    12  ^  Keys  v.  Grannis,  3  Nev.  54S. 

Minn.  £21;  Lathrop  v.  Stuart,  9  Mc-  ■*  Heroman    v.    Institution.    34  La. 

Lean,    1G7;    Reid  v.    Boyd,  13  Tex.  Ann.  805;  Bond  v.  White,  24  Kas.  45; 

241;  WLeeler  v.    Raymond,   8  Cow.  Haygood    v.    McKoon,    49    Mo.    79; 

341;  Diblee  V.  Davidson,   25  111.486;  Parker  v.  Wright,  62  Ind.  398;  Walker 

Cowen  V.  Braidwood,  9  Dowl.  27.  v.  Chase,  53  Me.  258;  Stewart  v.  Steb 

'  Biddle  v.  Wilkins,  1    Peters,  686;  bins,     30    Miss.     6G;     Kingsland    V 

Ricardo  v.  Garcias,  12  CI.  &  F.  368.  Spaulding,  3  Barb.  341. 

2  Rogers  v.  Libbey,  35  Me.  200. 


1432  Estoppel. 

tliis  action  against  the  plaintifT.'  So,  an  answer  of  res  adjudicata 
averring  tliat  in  a  fui'mer  action,  giving  time  and  place,  between 
tlio  identical  parties  to  this  suit,  in  a  court  liaving  jurisdiction  of 
the  persons  and  subject  matter  of  tlie  action,  the  identical  claims 
of  "  the  said  defendant  P.  against  the  defendant  R.  were  tried 
and  determined,  and  all  matters  of  difference  fully  tried  and 
adjudicated,  and  judgment  rendered  thereon  in  favor  of  this 
defendant  in  the  sum,"  etc.,  sufficiently  shows  that  the  same 
matter  had  been  theretofore  adjudicated  and  is  good  on  demurrer." 
Where  the  defendant  pleaded  res  adjudicata,  and  the  plaintiff,  in 
order  to  avoid  the  effect  of  the  plea,  insisted  that  the  facts  relied 
upon  by  him  for  recovery  were  not  sufficiently  pleaded,  and, 
therefore,  were  not  admissible  in  defense  of  the  former  suit,  but 
it  appeared  that  that  question  was  raised  in  that  suit  and  was 
decided  in  favor  of  the  admission  of  the  evidence,  and  it  was 
admitted.  Held,  that  the  plaintiff  could  not  raise  it  again.' 
In  an  action  brought  by  an  administrator  de  honis  non,  a  plea  of 
lie  unques  admhiistrator,  denied  the  validity  of  the  grant  of 
administration  to  plaintiff,  on  the  ground  that  there  was  no 
vacancy  in  the  administration  at  the  time  his  letters  were 
granted;  to  which  it  was  specially  replied,  that  a  former  action 
by  the  administrator  in  chief,  founded  on  the  same  cause  of 
action  was  defeated  by  a  plea  in  abatement,  which  averred  the 
removal  of  said  administrator  after  the  commencement  of  that 
suit,  "after  due  and  legal  proceedings  had  in  the  premises,"  and 
that  letters  of  administration  de  honis  non  were  granted  to 
plaintiff  after  the  rendition  of  the  judgment  in  that  case  ;  the 
replication  was  held  good  and  sufficient,  since  the  plea  and  judg- 
ment in  the  former  action  estopped  the  defendant  from  making 
that  defense*  In  an  action  which  has  been  once  litigated,  a  plea 
averring  that  the  plaintiff  ought  not  to  be  permitted  to  implead 
the  defendant,  because,  after  the  accrual  of  the  plaintiff's  cause 
of  action,  the  plaintiff  commenced  a  suit  in  chancery,  and  im- 
pleaded the  defendant  for  the  very  same  rights,  claims,  and  cause 
of  action  as  in  the  declaration  alleged,  and  that  such  proceedings 
were  thereupon  had  in  said  suit ;  that  before  the  commencement 

1  PiU-nell  V.  Habn,  61  Cal.  131.  s  Chouteau  v.  Gibson.  76  3Io.  38. 

5  Kyuearson  v.  Parkhurst,  88  Ind.  ■>  Hills  v.  Huckabee,  70  Ala.  183. 

564. 


How  Made  Available.  1433 

of  the  present  suit,  the  court  of  chancery  determined  said  cause 
of  action  in  favor  of  the  defendant, — and  gave  judgment — and 
decreed  in  i-espect  thereof  in  favor  of  the  defendant ;  and  that 
tlie  said  judgment  and  decree  still  remain  in  force, — is  good  on 
demurrer.'  A  replication  averring  that  the  court  of  chancery, 
in  dismissing  the  plaintiff's  bill,  reserved  to  him  the  right  of 
proceeding  at  law,  is  also  good  upon  demurrer.  Where  a  decree 
in  equity  is  relied  upon  as  res  adjudicata,  and  is  pleaded  in  bar 
in  a  subsequent  suit,  it  must  be  shown  that  the  decree  was  made 
upon  the  same  subject  matter  and  for  the  same  purpose,  and  that 
the  parties  in  the  character  in  which  they  are  litigants,  are 
identical.  For  the  purpose  of  ascertaining  the  point  in  con- 
troversy in  a  former  suit  and  what  the  court  really  intended  to 
settle  by  its  decree,  not  only  the  record,  but,  if  necessary,  the 
opinion,  as  reported  in  the  officially  published  report  of  the  case, 
will  be  examined.^ 

§  1285.  This  doctrine  at  law  gives  rise  to  a  kind  of  pleading 
that  is  neither  by  way  of  traverse,  nor  confession  or  avoidance, 
viz. :  a  pleading,  that  waiving  any  question  of  fact,  relies  merely 
on  the  estoppel  and  after  stating  the  previous  act,  allegation  or 
denial,  of  the  opposite  party,  prays  judgment  if  he  shall  be 
received  or  admitted  to  aver  contrary  to  what  he  before  said  or 
did.  This  is  a  pleading  by  way  of  an  estoppel.  In  order  take 
advantage  erf  the  latitude  thus  given,  and  bring  the  estoppel  of  a 
judicial  decision  to  bear  on  a  point  which  it  does  not  directly 
adjudge,  requires  the  utmost  certainty  of  allegation  and  proof. 
The  proper  course  is  to  plead  the  judgment  specially,  fortifying 
it  with  the  averments  necessary  to  supply  the  vagueness  of  the 
record,  and  show  that  the  precise  question  which  is  again  agita- 
ted has  been  already  determined.  No  estoppel  will  arise,  unless 
this  is  made  out  with  a  clearness  that  leaves  nothing  to  intend- 
ment or  inference.^    A  plea  to  an  action  of  trover  for  a  slave,  that 

»  Langmead  v.  Maple,  18  C.  B.  (N.         ^  Tams  v.    Lewis,   43   Pa.    St.   40 

S.)  255.  Davidson    v.    Shipman,    6    Ala.    27 

'^  Strong  V.  Grant,  2  Mackey,  218;  Packet   Co.  v.  Sickles,  24  How.  333 

Ry.  Co.  V.  New  Orleans,  14  F.  R.  378;  Jarrett  v.   Jobson,    11   G.  &  J.  173 

Plicque  v.    Ferrett,  19  La.  Ann.  318;  Cecil  v.  Cecil,  19  Md.  172;   Chamber- 

Kcane    v.    Fisher,   10  La.  Ann.   261;  lain  v.  Gaillard,  26  Ala.  54;  Lawrence 

Ante,  p.  470,  note  3.  v.  Hunt,  10  Wend.  80;  McKnight  v. 


1434  Estoppel. 

tlio  defendant  had  sued  for  liis  lure  in  a  former  action,  in  which 
the  riglit  of  ownership  or  title  was  in  issue,  and  obtained  judg- 
ment, will  consequently  be  bad  on  demurrer,  because  a  man  who 
hires  a  chattel  from  another,  cannot  dispute  the  title  of  his  bailor, 
and  the  judgment  may  have  been  based  upon  the  peculiar  relation 
that  the  parties  then  held,  and  decided  nothing  further.  When  a 
record  is  presumptive  in  favor  of  the  estoppel,  less  certainty  will  be 
required.  So  a  general  verdict.  The  determination  of  a  contro- 
verted point  in  one  action  \&  prima  fctcie  evidence  in  ever}'  other 
in  which  the  same  matter  is  in  controversy,  although  there  can 
be  no  estoppel  unless  the  issue  was  specially  raised  in  the  plead- 
ing and  determined  hy  the  verdict}  When  sufficient  evidence  is 
adduced  to  satisfy  the  jury  that  the  cause  was  heard  and  decided 
at  the  trial,  they  will  be  bound  by  the  verdict  and'cannot  return 
their  own  in  any  other  way.' 

§  1:386.  The  burden  of  proof  is  on  those  who  rely  on  the 
estoppel,  and  they  must  show  that  the  matter  for  Avhicli  the 
plaintiff  sues  has  been  already  heard  and  determined.'  When, 
however,  it  is  made  to  appear  that  a  transaction  lias  undergone  a 
judicial  investigation,  the  presumption  will  be  irresistible  that  the 
judgment  covered  the  whole,  so  far  as  it  was  entire  and  indivis- 
ible and  cannot  be  overcome  by  the  clearest  proof  that  no  evi- 
dence was  given  as  to  part  by  the  plaintiff,  or  that  the  defendant 
failed  to  take  advantage  of  a  defense  that  might  have  been  made 
availal)le.  A  judgment  for  the  plaintiff  in  an  action  of  replevin, 
will  be  equally  conclusive  in  his  favor  against  the  defendant, 
whether  the  latter  traversed  the  averment  in  the  declaration  that 
the  goods  were  the  plaintiffs,  or  confined  himself  to  a  denial  of  the 
taking  and  detention.  In  like  manner,  a  recovery  on  the  contract 
will  preclude  him  from  suing  for  any  breach  or  default  on  the 

Dunlap.  4  Barb.  36;  Jackson  V.  "Wood,  Langdon.   3  Gray,   513;    Richard   v. 

3  Wend.   27;  Rich   v.  Hotcbkiss,  16  Boston,  19  How.  263;  Cabot  v.  Arnold, 

Conn.  409;   Lajoye  v.  Premin,  3   Mo.  12  Met.  136. 

529;  Crundall  v.  Galhip,  12  Conn.  365.  ^  Sawyer  v.  Woodbury,  7  Gray,  499; 

'  Standish   v.  Parker,    2   Pick.    20;  Jeiinison  v.  Springfield,  13  Gray,  544; 

Parker    v.    Standish,    3     Pick.    288;  Burlen  v.  Shannon,  14  Gray,  433. 

Arnold  v.  Arnold,  17  Pick.  7;  Button  '^  Cummings  v.  Colgrove,  25  Pa.  St. 

V.  Woodman,  9  Cush.  255;   Gilbert  v.  50;   Bennett  v.  Holmes,  1   D.  &  B. 

Thompson,   9   Cush.    348;   Burlen  v.  486. 
Shuinion,  3  Gray,  387;  McDonald  v. 


How  Made  Available.  1435 

part  of  the  plaintiff  that  would  have  constituted  a  bar  as  distin- 
guished from  a  defense,  by  way  of  set-off  or  recoupment  to  the 
action.  For  when  an  act  or  contract  is  entire,  and  might  be  dis- 
posed of  in  one  suit,  the  law  will  not  suffer  it  to  be  divided  or 
made  the  subject  of  distinct  proceedings,  and  hence  a  defendant 
who  suffers  judgment  to  go  against  him  for  the  price  of  machin- 
ery manufactured  by  the  plaintiff  cannot  subsequently  recover 
damages  for  an  alleged  want  of  care  or  skill  in  the  workmen  by 
whom  the  machinery  was  made. 

§  1287.  Nil  debet  cannot  be  pleaded  to  an  action  of  debt  on  a 
judgment  where  the  court  rendering  the  judgment  had  jurisdic- 
tion.' A  debt  cannot  be  denied  without  denying  the  instrument 
on  which  it  is  founded.  Hence  a  plea  of  nil  debet  is  a  bad  plea 
in  an  action  founded  on  a  judgment.  If  it  is  desired  to  attack 
the  judgment,  the  plea  should  be  nul  tiel  record."^  Under  the 
plea  of  mil  tiel  record  the  existence  of  the  judgrnent  sued  on  is 
denied,  and,  being  thus  denied,  its  existence  can  be  determined 
alone  by  an  inspection  of  the  record  itself;  and,  if  such  inspec- 
tion shows  an  omission  in  the  record  of  any  essential  feature,  it  is 
fatally  defective,  and  no  testimony  dehors  the  record  can  supply 
the  omission  or  cure  the  defect.^  To  scire  facias  on  a  judgment 
nil  d^ehet  cannot  be  pleaded.  The  proper  plea  is  mil  tiel  record, 
which  puts  in  issue  the  fact  whether  notics  to  the  defendant  of 
the  pendency  of  the  suit  was  given. ^  Where  it  appears  from  the 
record  of  a  foreign  judgment  that  process  was  served  on  the 
defendant,  or  that  he  appeared  in  the  suit,  the  fact  cannot  be 
denied  by  plea.  But  the  plea  may  show  in  what  manner,  whether 
by  personal  service  or  by  attachment,  notice  was  given,  as  this 
does  not  contradict  the  record,  but  limits  its  operation.^ 

§  1288.  Facts,   in  opposition  to  the   record   of   a   judgment 

'  French  v.    Ins.    Co  ,    5    McLean,  "Wilbur  v.  Ab])ott,  59  N.  H.  133. 

461;    Reed    v.    Ross,    1    Baldw.    36;  ^  C\2,x^  v.    Melton,    19   8.    C.   498; 

Hampton    v.    McConnell,    3    Wheat.  Wright  v.  Fletcher,  12  Vt.  431;  Bar- 

333;    Benton   v.  Burgott,  10   S.  &   R.  mud  v.  Flandeis,  13  Vt.  657. 

240;  Ind.  &  Co.  v.  Risley,  50  Ind.  60;  *  Bergerv.  Williams,  4  McLean,  125. 

Lawrence  v.  Jarvis,  73  111.  304;  Boston,  ^  Lincoln  v.  Tower,  2  McLean,  473; 

&c.  V.  Hoit,  14  Vt.  92.  Thompson  v.  Emmert,  4  McLean,  9(); 

*  Armstrong  v.  Carson,  2  Dall.  302;  United  Stales  v.  Little,  3  Cranch  C. 

Manf'g  Co.  V.  Ins.  Co.,  2  Paine,  501;  Ct,  351. 


143G  Estoppel. 

obtained  in  one  State,  cannot  be  alleged  to  contradict  the  jndg- 
Hient,  in  an  action  brought  upon  it,  in  another  State.  A  judg- 
ment in  one  State  is  conclusive  between  the  parties  in  another 
State.'  The  pleadings  in  an  action  are  governed  by  the  dignity 
ol"  the  instrument  on  which  it  is  founded.  If  it  is  a  record  con- 
clusive between  the  parties,  it  cannot  be  denied  but  by  plea  of 
nul  tiel  record.  And  when  Congress,  by  the  act  of  May  26, 1788, 
gave  the  effect  of  a  record  to  the  authenticated  copy  of  the  judi- 
cial proceedings  of  one  State,  in  another,  it  gave  all  the  collateral 
consequences,  among  which  are  that,  if  conclusive  between  the 
parties,  it  cannot  be  denied  only  by  that  plea.^  The  only  avail- 
able defense  to  judgments  of  other  States  is  that  of  jurisdiction 
over  the  person  or  subject  matter.  Every  fact  which  would  go 
to  show  want  of  jurisdiction  must  be  clearly  and  positively 
alleged.' 

§  1289.  A  plea  of  judgment  recovered  in  a  foreign  court  of 
competent  jurisdiction  must  show  that  the  judgment  so  recovered 
is  linal  and  conclusive  between  the  parties,  according  to  tlic  law 
of  the  plnce  where  such  judgment  is  pronounced.*  But  such 
judgment  cannot  be  conclusive  where  the  proceedings  are  so 
defectively  set  out  that  the  point  which  is  sought  to  be  estab- 
lished by  it  does  not  clearly  appear  to  be  decided.^ 

§  1290.  The  discharge  of  a  debtor  under  an  act  of  bankruptcy 
is  no  estoppel  to  an  action  in  any  stage,  unless  it  is  pleaded." 
Where  the  matter  on  which  an  estoppel  arises  has  not  appeared 
in  the  preceding  pleadings,  it  is  unnecessary  to  plead  it  specially.'' 

'  Piolds  V.  Gibbs,  1  Pet.  C.  Ct.  155;  *  Frays  v.  Worms,  10  C.  B.  (N.  S.) 

Todd  V.  Crump,  5  McLean,  173.  149;  Plummer  v.  Woodburne,  4  B.  & 

*  Mills  V.   Duryee,   7   Crauch,   481;  C.  625;    Douglass  v.  Forrest.  6   Blng. 

Hampton  v.  McConnoll,  3  Wlieat.  334.  Gb6;  Smith  v.  Nichols,  5  Bing.  (N.  C.) 

3  Thompson  v.  Whitman,  18  Wall.  223;  Behrens  v.  Sieveking,  3  M.  &  G. 

457;  Shumway  v.  Stillman,  4  Cowcn,  G03. 

2!)3;  Starbiick  V.  ]Murray.5Weud.  148;  M:)biciui    v.    Bligh.    8    Bing.    351; 

Mills  V.  Duryee.  7  Crauch,  481;  Davis  Sadler  v.  Robbius,  1  Camp.  253;    Cal- 

V.    Lane,    3    Ind.  548;    Andrews    v.  louder  v.  Diltrich,  4  M.  &.  G.  83. 

Montgomery,  19  Johns.  162;Evausv.  *  Palmer   v.    Hutchias,  1   Cow.  43; 

Tatem,  9  S.  &  R.  353;  Moulin  v.  Ins.  Baker  v.  Taylor,  1  Cow.  1G5;   Cornell 

Co.  ,34  N.  J.  L.  323;  Foster  v.  Glazener,  v.  Dakin,  38  N.  Y.  253. 

27  Ala.  391;  Latterett  v.  Cook,  1  Iowa,  '  Howard  v.  Mitchell,  14  Mass.  341; 

1;  See  Ante  Ch.  VII.,  Judgments  of  Adams  v.  Barnes,  17  Mass.  365. 
other  states  for  additional  authorities. 


How  Made  Available.  1437 

In  a  plea  of  estoppel,  everj  fact  necessary  to  create  the  estoppel 
must  be  directly  and  precisely  proved,  and  nothing  is  to  be  taken 
by  inference.  Thus,  where  a  former  decree  in  chancery  on  a  bill 
brought  by  A.,  as  administrator  of  the  estate  of  B.,  was  pleaded 
as  an  estoppel,  and  it  appeared  from  the  plea  that  A.  claimed  to 
be  administrator,  and  as  such  brought  his  bill,  and  described  him- 
self as  such  throughout,  but  there  was  no  direct  averment  that 
A.  was  in  fact  administrator,  it  was  held  that  the  plea  was,  for 
such  cause,  insufficient.'  A  party  is  not  estopped  by  every  aver- 
ment made  by  the  other  side  which  he  does  not  deny,  but  only 
by  averment  of  facts  material  and  traversable,  alleged  directly  and 
precisely,  and  not  by  way  of  argument,  inference  or  recital. 
Thus,  where  to  an  action  of  the  sheriff  against  a  surety  on  his 
deputy's  official  bond,  the  surety  pleaded  that  on  a  certain  day 
notice  was  given  to  the  sheriff,  by  another  surety,  that  he  would 
no  longer  be  responsible  for  the  official  conduct  of  the  deputy, 
who  became  insolvent,  and  that  the  sheriff  still  carelessly  and 
fraudulently  continued  him  in  office,  and  that  all  his  defaults 
happened  after  such  notice ;  to  which  the  sheriff  replied  by 
alleging  a  breach  previous  to  the  notice,  without  denying  or  pro- 
testing against  the  other  facts  alleged,  and  had  judgment  upon  a 
general  demurrer  to  the  replication;  it  was  held,  in  a  scire  facias 
for  further  execution,  that  the  facts  so  stated  in  the  plea,  and 
not  denied,  did  not  constitute  an  estoppel,  the  fraud  not  being 
directly  alleged,  nor  necessarily  deducible  from  the  other  facts  in 
the  plea.^ 

§  1291.  An  estoppel  by  deed  is  to  be  made  available  in  the 
same  manner  as  the  estoppel  of  a  judgment  of  a  court  of  record. 
It  must  be  pleaded,  if  there  is  an  opportunity,  otherwise  the 
party  omitting  to  ])lead  it  waives  the  estoppel,  and  the  jury  must 
find  according  to  the  truth. ^     Thus,  where  a  grantor  denies  title 


'Crandall  v.  Gallup,  12  Conu.  373.  295;  Carpenter  v.  Buller,   8  M.  &  W. 

''■  Adams  v.  Moore,  7  Me.  86.  213;   Freeman  v.    Cooke,    2    Exchq. 

^  Trevivan,  v.    Lawrence,    Salkeld,  663;  Vooght  v.  Winch,  3  B.  »&  A.  662; 

276;  Young  V.  Raiucock,  7  C.  B.  310;  Hooper  v.    Hooper,   M.   C.  C.  *fc  Y. 

Magrathv.  Hanly,  4Bing.  (N.  C.)782;  509;   Whittaker  v.  Jackson,   1   H.  & 

Davenant   v.    Rafter,   2   Ld.  Raymd.  C.  936;  Wilson  v.  Butler,  4  Bing.  (N. 

1054;  AVilkins   v.  Wingate,    6  T.    R.  C.)   748;   Brinsmaid  v.  Mayo,  9  Vt. 

62;  Bowman  v.  Rostron,  2   A.    &  E.  31. 


1438  Estoppel. 

at  the  time  of  the  execution  of  the  deed,  and  the  assignee  of  the 
grantee  takes  issue  on  that  point,  the  assignee  waives  liis  right  to 
object  that  the  grantor  is  estopped  by  his  deed  from  denying 
seizin,  and  the  jury  may  find  the  trutii.'  If  his  adversary  does 
not  rely  upon  tlie  estoppel,  the  court  and  jxny  are  not  bound  by 
it,  but  the  jury  may  find  tlie  matter  at  lai'ge  according  to  the 
fact,  and  the  court  will  give  judgment  accordingly.  He  asks  them 
their  opinion,  and  they  are  bound  to  give  it.  Where,  however, 
the  title  of  the  party  is  by  estoppel,  and  he  has  no  oppoitunity 
of  pleading  it,  the  jury  cannot  find  against  the  estoppel.  Thus, 
in  debt  for  rent  or  an  indenture  of  lease,  if  the  defendant  plead 
nil  debet,  he  cannot  give  in  evidence  that  the  plaintili  had 
nothing  in  the  tenements,  because  if  he  had  pleaded  that  specially, 
the  plaintiff  might  have  replied  the  indenture,  and  estopped  him  ; 
but  if  the  defendant  plead  ivihil  hahuit,  &c.,  and  the  plaintiff, 
instead  of  relying  up  the  estoppel,  reply  habuit,  &c.,  he  waives 
the  estoppel,  and  leaves  the  matter  at  large ;  he  puts  the  fact  in 
issue,  and  the  jury  are  to  find  the  truth,  notwithstanding  the 
indenture."  But  when  an  estoppel  creates  an  interest  in  lands, 
the  court  will  adjudge  accordingly  upon  the  facts  found  by  the 
jury.  As,  if  A.  lease  land,  in  which  he  has  no  interest,  to  B.  for 
six  years,  and  then  purchase  a  lease  of  the  same  lands  for  twenty- 
one  years,  and  afterwards  lease  to  C  for  ten  years,  and  these 
facts  are  found  by  verdict,  the  court  will  adjudge  the  lease  in  B. 
to  be  good,  though  it  was  so  only  by  the  conclusion.'  If  a  plaint- 
iff in  ejectmcMt  make  title  by  a  judgment,  in  a  scire  facias,  on  a 
judgment  in  Trinity  Term,  when  the  judgment  was  in  fact  of 
Michaelmas  Term,  the  juiy  cannot  find  that  the  original  judgment 
was  of  Michaelmas  Term.*  So,  in  trespass  for  mesne  profits,  if 
the  defendant  pleads  that  the  plaintiff  Avas  not  possessed,  the 
judgment  in  ejectment  may  be  replied  by  way  of  estoppel,  and 
will  be  conclusive."  If  the  plaintiff  neglects  so  to  repl}',  and 
joins  issue  on  the  plea,  the  judgment  will  not  be  conclusive." 

'  Bartholomew  v.  Candee,  14  Pick.  783. 

167.  5  Doe  V.  Wright,  10   A.  &  E.  763; 

«  Com.     Dig.     Estoppel,     C. ;    ib.  Wilkinson  v.  Kirby,  15  C.  B.  430. 

Pleader,  S.  5;  BuUer's  N.  P.  298.  «  Dee  v.  Hi;ddart,  2  C.  M.  &,  R.  316; 

*  Com.  Dig.  Estoppel  E.  10.  Feveisham   v.    Emerson,    11    Exchq. 

♦  Trevivan  v.  Lawrence,  Salk.  276;  385;  Mathew  v.   Osborne,    13  C.   B. 
Magrath  v.    Hardy,    4  Bing.  (N.  C.)  919. 


How  Made  Available.  1439 

§  1292.  If  a  woman  sue  or  be  sued  as  sole^  and  judgment  be 
against  her  as  such,  though  she  was  covert^  the  sheriff  shall  take 
advantage  of  the  estoppel.' 

In  other  cases,  where  the  party  who  might  have  relied  on  the 
estoppel  in  pleading  waives  it,  and  gives  the  deed  in  evidence, 
although  the  jury  are  not  bound  by  the  estoppel  from  finding 
according  to  the  truth  of  the  fact,  yet  it  seems  that  they  would 
not  be  warranted  in  finding  a  verdict  contrary  to  the  solemn 
admission  of  the  part}',  without  the  strongest  evidence  of  fraud. 
As,  for  instance,  before  the  rules  of  Hilary  Term,  1834,  in  an 
action  of  assurrvpsit,  where  the  defendant  pleaded  the  general 
issue,  and  gave  in  evidence  a  release  which  he  might  have  relied 
upon  as  an  estoppel ;  although  he  waived  the  estoppel,  still  the 
release  was  considered  to  be  conclusive  evidence  for  the  defend- 
ant, in  the  absence  of  fraud.  Though  one  mortgaging  a  water 
privilege  with  general  warranty  is  estopped  by  the  deed  to  deny 
the  mortgagee's  title,  yet  if  it  be  agreed  in  a  case  stated  that 
nothing  passed  by  the  deed,  the  estoppel  is  removed. 

§  1293.  An  estoppel  effecting  the  title  to  land  may  be  given 
in  evidence.*  But  only  a  sealed  instrument  can  be  pleaded  by 
way  of  an  estoppel.^  And  if  is  not  so  pleaded  it  will  be  con- 
sidered as  waived.*  But  Avhere  a  writing  is  introduced  as  evi- 
dence the  other  party  may  avail  himself  of  it  as  an  estoppel.^ 

No  instrument  in  writing  not  under  seal  can  be  pleaded  as  an 
estoppel.  The  manner  of  pleading  an  estoppel,  is  to  relj'  on  the 
deed  as  an  estoppel,  and  pray  judgment  that  the  party  be  estop- 
ped, or  not  admitted  to  deny  the  facts  which  the  deed  purports, 
without  demanding  judgment,  si  actio,  etc.,  etc.^ 

There  are  cases  in  which  the  defendant  is  not  permitted  to 
controvert  the  title  of  the  claimant  in  an  action  of  ejectment  on 
the  ground  of  estoppel,  or  where  a  privity  exists  between  the 
defendant  and  the  plaintiff,  or  those  from  whom  he  derives  title. 
If  a  privity  in  estate  has  subsisted  between  the  parties,  proof  of 
title  is  ordinarily  unnecessary  on  the  part  oi  the  plaintiff,  for  the 
reason  that  a  party  is  not  permitted  to  dispute  the  title  of  him 

'  Wheelock  v.    Henshaw,  19  Pick.  *  Brinsmaid  v.  Mayor,  9  Vt.  31. 

341.  6  Hall  V.  liann,  5  Dana,  55. 

-  Adams  v.  Barnes,  17  Mass.  365.  ^  Davis  v.  Tyler,  12  Johns.  490. 
•'  Davis  V.  Tyler,  12  Jalins.  490. 


1440  Estoppel. 

by  whom  he  has  been  lot  into  possession.  In  all  these  cases, 
therefore,  the  proof  is  directed  to  the  question  as  to  whether 
snch  relation  exists  between  the  parties  as  to  operate  as  an  estop- 
pel, and  thereby  supersedes  the  necessity  of  inti'oducing  any  evi- 
dence to  establish  the  title  of  the  claimant.  The  principle  of 
estoppel  arises  where  the  action  is  between  mortgagee,  mort- 
gagor, their  privies  or  assigns.  A  landlord  who  brings  an  action 
against  a  tenant,  is  in  no  case  obliged  to  prove  his  title  to  the 
demised  premises,  for  the  landlord's  title  is  admitted  by  a  tenant 
who  takes  a  lease  from  him,  and  on  the  faith  of  the  lease  occupied 
the  premises.  And  where  rent  has  been  paid  to  a  tenant  for  life, 
the  same  rule  applies,  and  he  will  not  be  permitted  to  dispute  the 
title  of  the  reversioner.  In  these  cases,  the  plaintiff  is  not 
required  to  make  proof  of  his  title.'  No  third  title  can  be  pur- 
chased by  an  agent  or  a  tenant,  and  made  use  of  to  defeat  that 
of  the  landlord.  If  the  tenant,  after  renting  the  premises^ 
acquired  rights  adverse  to  his  landlord,  he  is  bound  to  surrender 
the  pro])ei-ty  before  he  can  be  permitted  to  assert  them." 

§  1294.  He  who  claims  title  by  estopjDel  is,  as  to  those  estop- 
ped, in  the  constructive  possession  of  the  land,  and  may  main- 
tain trespass.^  Where  a  party  claims  to  establish  his  right 
merely  by  estoppel,  the  instrument  by  which  the  estoppel  is  sup- 
ported should  be  precise,  clear  and  unequivocal,  not  depending 
upon  doubtful  inference.  In  a  real  action  a  disclaimer  estops  the 
tenant  denying  the  title  set  forth  in  the  demandant's  writ,^  but 
he  n)ay  show  that  the  lessor's  title  has  expired.  And  if  he  is 
evicted  and  deprived  of  the  use  and  enjoyment  of  the  demised 
premises  by  some  person  claiming  by  title  i)aramonnt,  the  evic- 
tion is  pleadable  in  bar  to  the  demand  for  the  rent.  Where  the 
matter  which  constitutes  an  estoppel  is  set  up  in  the  declaration, 
the  plaintiff"  may  demur  to  a  plea  which  attempts  to  set  up  the 
same  matter  as  a  defense.  ]3ut  if  such  matter  does  not  appear 
on  the  face  of  a  declaration,  the  plaintiff  must,  by  a  replication, 
expressly    show   such    matter,  and    rely   thereon."     An    estoppel 

'  Doc  V.  Wbitioe,  D.  &  R.  N.  C.  P.  ^  piielps  v.  Blount,  2  Dev.  177. 

1;   Kenuie  V.  Robertson,  1   Bing.  147;  *  Prescott  v.  Hutchinson,   Vd  Mass. 

Tilgbman  v.  Little,  13  111.  23t).  439. 

»  Brown  v.  Keller,  33  111.  151;  Rus-  ^  Smith  v.  Wbittuker,  11  111.  417. 
sell  V.  Titus,  3  Grant's  Cas.  295. 


How  Made  Available.  1441 

cannot  be  taken  by  inference,  but  must  be  relied  on  in  the 
pleadings.'  If  tbe  matter  is  not  expressly  and  precisely  alleged, 
it  will  be  no  estoppel.*  Where  a  party  relying  on  a  matter  in 
estoppel  lias  no  opportunity  of  pleading  it  as  a  landlord  relying 
on  his  lease  in  ejectment,  he  may  give  it  in  evidence  with  the 
same  effect  as  if  pleaded.^ 

§  1295.  AYhenever  the  application  of  the  doctrine  of  estoppel 
would  be  likely  to  defeat  the  principle  upon  which  it  rests,  to 
effect  justice  and  prevent  wrong,  it  becomes  the  duty  of  the 
courts  to  prevent  its  application.  But  to  be  available  where 
there  is  more  than  one  party,  they  must  be  mutual,  and  can  only 
operate  upon  the  parties  to  the  issue  and  those  who  stand  in 
privity  of  estate  or  descent,  and  one  who  is  not  bound  by  cannot 
take  advantage  of  an  estoppel ;  an  estoppel  must  be  reciprocal 
and  certain  to  every  intent  binding  both  parties;  a  defendant  in 
an  action  of  covenant  is  estopped  from  pleading  that  the  contract 
was  entered  into  for  any  fraudulent  purpose  against  the  govern- 
ment,* a  jury  is  bound  by  an  estoppel,  and  a  court  will  disregard 
a  finding  contrary  tliereto,  except  where  the  party  has  waived  his 
rights  by  mispleading.^  In  debt  on  bond,  the  defendant  pleaded 
that  the  same  was  obtained  by  false  suggestions  and  misrepre- 
sentations by  the  plaintiff,  "  as  per  preamble  in  the  said  bond."* 
The  plaintiff  joined  issue  as  to  that  fact,  which  was  found  against 
liim  by  the  jury.  Held,  that  the  plaintiii",  by  joining  issue  and 
not  demurring,  had  waived  any  estoppel  which  he  might  have 
had  to  such  plea.' 

§  129G.  In  regard  to  estoppels  in  2)ais  or  equitable  estoppels, 
there  is  a  remarkable  difference  between  this  and  other  kinds  of 
estoppels,  that  is,  that  estoppels  in  ^^(/m^  may  be  relied  on  in  evi- 
dence as  conclusive  without  being  specially  pleaded,  and  from 
some  of  the  reported  English  cases  it  seems  that  it  is  optional 
either  to  plead  specifically  the  facts   out  of  which  the  estoppel 

•  Lansing  v.  Montgomery,  2  Johns.  ■*  Pbilpots  v,  Pbilpots,  1  E.  L.  &  E. 

383.  339. 

'^  Guild  V.  Richardson.  6  Pick.  3G4;  '"  Bufferh)w    v.    Newsom,    1    Dev. 

Crandall  v.  Gallup,  13  Conn.  365.  208. 

'^  Lord  V.  Bigelow,  8  Vt.  445;    Shel-  «  Wright  v.  Hazen,  34  Vt.  143;  Ghew 

ton  V.  Alcox,  11  Conn.  250.  v.  Moffet,  6  Munf.  120. 

'  Black  V.  Tucker,  13  Vt.  44. 

Vol.  L— 91 


1442  Estoppel. 

arises,  or  to  allege  and  deny,  as  the  case  may  be,  that  which  those 
facts  conclude  the  opposite  party  from  denying  or  alleging,  and 
.'ely  at  tlie  trial  upon  the  matter  in  jmis  which  creates  the  estop- 
pel, as  being  conclusive  evidence  of  such  allegation  or  denial.  A 
party  setting  up  an  equitable  estoppel,  or  m  j>ais,  is  himself 
bound  to  the  exercise  of  good  faith  and  due  diligence  to  ascertain 
the  truth.  What  is  reasonable  diligence,  is  a  question  of  fact  for 
the  jury,  under  all  the  circumstances  of  the  case.  They  might 
sometimes  find  that  the  party  setting  up  such  estoppel  could 
reasonably  rel}''  on  the  representations  made  to  him,  without 
injury.'  The  facts  constituting  an  estoppel  in  j>a{s  against  a 
plaintiff,  must  l)e  set  out  in  the  answer,  otherwise  proof  of  them 
is  n(>t  admissible.''  They  must  be  sufficiently  pleaded  to  warrant 
the  court  in  granting  a  decree  which  will  estop  the  further  prose- 
cution of  the  action.^ 

§  1297.  The  origin  of  this  branch  of  estoppels  being  purely 
equitable,  the  remedy  in  such  cases  were  in  an  application  to 
chancery,  and  no  redress  could  be  obtained  at  law  unless  under 
rare  and  exceptional  circumstances.*  But  the  common  law  has 
been  enlarged  and  enriched  with  the  principles  and  maxims  of 
equity  which  are  constantly  applied  at  the  present  time,  both  in 
England  and  America,  for  the  relief  of  sureties,  the  protection  of 
mortgagors,  and  benefit  of  purchasers,  by  a  wise  adaptation  of 
ancient  forms  to  the  more  liberal  spirit  of  modern  times. 

§  1298.  The  application  of  equitable  estoppels  by  courts  of 
equity  is  to  every  species  of  property,  and  there  can  certainly  be 
no  reason  for  restricting  its  operation  by  coui'ts  of  law,  the  neces- 
sity of  protection  against  fraud,  no  matter  what  the  interests  are 

•  Moore  v.  Bowman,  47  N.  11.  494;  Smith,  24  Cal.  124;  Bray  v.  Marshall, 

Odliu  V.  Gove,  41  N.  H.  65.  75  Mo.  327;  Noble  v.  Blount,  77  Mo. 

'  Gill  V.  Rice,  13  Wis.  885;  Wood  235;  Blum  v.  Robertson,  24  Cal.  14«; 
V.  Ostiain,  29  Ind.  177;  Bray  v.  :\Iar-  Meador  v.  Parsons,  19  Cal.  294;  Car- 
shall,  75  Mo.  327;  Tailman  v.  Varick,  penter  v.  Oakland,  30  Cal.  597; 
5  Barb.  277;  i\Iaxwell  v.  Longnecker,  Lcstrath  v.  Barth,  19  Cal.  660;  Pattcr- 
89  111.  102.  son   v.   Ely,    19  Cal.    28  ;   Estrade  v. 

3  Gaylord  v.  Van   Loan,  15  Wend.  ]\Iurphy,  19  Cal.  248;  Clark  v.  liuber, 

308;  People  V.  Turnpike  Co.,  23  Wend.  25  Cal.  593:   Davis  v.  Davi.s,  26  Cal. 

222;   Gill  v.  Rice,  13  Wis.  549:   R.  R.  39;  Argucllo  v.  Ediuger,  10  Cal.  150. 

Co.  V.  Harris,  8  Neb.  140;  Waddell  v.  *  Tilton  v.  Nelson,  27  Barb.  595. 
Morrill,    26    Wis.    611  ;    Downer    v. 


How  Made  Available.  1443 

or  may  be  that  are  at  stake.  There  is  nothing  in  the  nature  of 
real  estate,  whether  the  action  be  at  hiw  or  in  equity,  which 
should  deprive  it  of  the  benefit  of  those  wise  and  salutary  prin- 
ciples which  are  applied  without  hesitation  in  both  jurisdictions 
in  the  case  of  personalty.  The  doctrine  of  equitable  estoppels 
has  become  too  firmly  established  to  question  at  this  day  the  wis- 
dom of  the  change  which  released  it  from  the  exclusive  equity 
jurisdiction  of  former  times,  enlarging  its  operation  to  the  whole 
field  of  jurisprudence."  In  one  case*  it  was  held  that  the  applica- 
tion of  equitable  estoppels  to  the  title  of  land  is  not  a  variance 
with  the  interpretation  which  has  invariably  been  given  to  the 
statute  of  frauds,  in  equity,  and  that  it  is  essentially  necessary  to 
the  administration  of  the  common  law,  while  in  some  of  the  other 
states^  it  is  held  that  the  only  remed}'^  lies  in  equity.  The  doctrine 
of  equitable  estoppels  is  one  which  at  the  present  time  can  be 
applied  at  law  to  real  and  personal  property  without  forcing  the 
parties  to  seek  relief  in  equity,  and  as  between  co-ordinate  powers 
neither  can  lessen  tlie  power  of  the  other  by  arrogating  them  to 
itself  ;  the  appropriation  of  the  doctrines  of  equity  by  the  com- 
mon law  will  not  estop  the  right  to  seek  redress  by  an  application 
in  due  form  to  chancery.* 

§  1299.  Whether  declarations  were  made  or  a  course  adopted 
of  a  nature  to  njislead  others,  and  how  far  the  latter  were  actually 
deceived,  are  questions  of  fact  which  must  be  submitted  to  a  jury 
when  the  suit  is  brought  in  a  court  of  law.*  But  the  court  should 
at  the  same  time  declare  what  the  elements  of  an  equitable  estop- 
pel are,  and  if  they  are  present,  the  conclusion  will  follow  as  a 

*  Burkbalter   v.    Edwards,    16   Ga.  Sasser  v.  Joaes,  3  Ired.  Eq.  19;  Blake 
593;  Merritt  v.  Home,  5  Ohio  St.  307;  v.  Fash,  44  111.  302;   Walker  v.   Mur- 
Shaw  V.  Beebee,  35  Vt.  205;  Hatch  v.  -phy,  34  Ala.  591;  Smith  v.  Mundy,  18 
Kimball,  16  Me.  146;   Ruulet  v.  Otis,  Ala.  182;  Mills  v.  Graves,  38  111.  455; 
2  N.  II.  167;  Gregg  v.  Wells,  10  A.  &  Doe  v.  Walters,  16  Ala.  714;   Kuight 
E.  90;  Copelaud  v.  Copeland,  28  Me.  v.  Wall,  2D.  &  B.  125. 
525;  Marshall  v.  Pierce,  12  X.  H.  134;  4  Chui-oh  v.  Moore,  10  Pa.   St.  273; 
Gerhard  v.  Bates,  2  Q.  B.  476;   Morse  Wells  v.  Pierce,    27  N.   H.   503;  Cor- 
V.  Child,    6  K  H.   521;   Ilolvoyd  v.  bett  y.   Norcross,  35  N.  H.  99;  Wat- 
Marshall,  2  De  G.  J.  &  F.  596.  kins  v.  Peck,  13  N.  H.  160. 
»  Rangely  v.  Spring,  22  Maine,  130.          *  Forsyth  v.  Day,  46  Me.  176;  Odlin 
3  Danly    v.    Rector,   10  Ark.    211;  v.  Gove,  41  N.  H.  465;  Gunn  v.  Bates, 
West   V.    Tilghman.  8  Ircd.  Eq.  163;  6  Cal.  263. 
Jones  v.    Sasser,   1   Dev.   &  B.  452; 


1444  Estoppel. 

matter  of  law."  Thus,  where  tlic  owner  of  real  or  personal  prop- 
erty says  or  does  that  which  necessarily  tends  to  convey  the  impres- 
sion that  he  has  no  title  or  means  to  waive  the  title  which  he  has, 
the  presumption  that  subsequent  purchasers  were  influenced  by 
his  conduct  will,  in  the  absence  of  rebutting  testimony,  be 
irresistible  and  will  be  enforced  as  a  matter  of  law.^  Where  good 
faith  is  a  necessary  ingredient  in  the  issue,  and  there  can  be  no 
estoppel  unless  there  was  a  design  to  mislead,  the  decision  should 
be  left  to  the  jury,  who  are  under  all  circumstances  the  appropriate 
tribunal  to  determine  between  honesty  and  fraud,  and  in  one 
case,^  the  question  whether  the  silence  of  the  plaintiff  had  estop- 
ped him  from  asserting  his  title  was  said  to  be  one  Avhich  the 
court  could  not  decide,  and  must  leave  with  proper  instructions 
to  the  jurors. 

§  1300.  There  are  few  more  difficult  questions  tlian  those 
which  arise  when  a  bond  or  deed  is  executed  on  the  faith  of  a 
promise  that  it  shall  be  subject  to  a  qualification  or  condition 
inconsistent  with  its  terms.  In  such  cases  tlie  principle  that  a 
sealed  instrument  shall  not  be  varied  by  parol  evidence,  is  brought 
in  antagonibm  witii  the  equitable  one  that  a  promise  on  the  faith 
of  which  others  have  acted  cannot  be  recalled,  and  it  is  not  always 
easy  to  draw  the  line  between  them,  or  know  how  far  the  one 
shall  be  allowed  to  modify  the  operation  of  the  other.  It  has, 
however,  been  held  in  Pennsvlvania,  and  that  State  has  gone  far- 
ther than  any  other  on  this  point,  that  when  the  promise  and 
insti-ument  differ,  the  promise  must  prevail,  if  the  evidence  justi- 
fies the  belief  that  the  instrument  would  not  have  been  executed 
but  for  the  promise.''  Where  the  pi'omise  can  be  proved,  the 
course  of  decisions  would  be  eminently  just,  because  it  would 
appear  that  the  writing  did  not  contain  the  whole  contract,  and 
that  the  meanitig  of  the  parties  must  be  sought  elsewhei'e.*  It  is 
difficult  to  reconcile  these  decisions  with  the  well  established 
principles  of  equity  and  justice,  that  where  the  contract  is  reduced 

'  Lewis  V.   Carstairs,  6  Wliart.  193.  2i2;    Taylor   v.   Gilmer,   25   Vt.  411; 

**  Robinson    v.    Justice,    2   Pa.    St.  Keisselbrack  v.  Livingston,  4  Jolins. 

19:   Koelcr  v.  Vaniuyle,  0  Pa.  St.  250;  Cii.  144;   Renshaw  v.  Gaus,  7  Pa.  St. 

McMullen  v.  Werner,  Ki  S.  &  R.  18.  119. 

3  Gunn  V.  Bates,  6  Cal.  263.  ^  Thurston  v.  Ludwig,  6  Ohio  St.  1. 

^Chalfant  v.    Williams,  So  Pa.  St. 


How  Made  Available.  1445 

to  writing,  tlic  writing  is  not  only  the  best,  but  the  only  evidence 
of  the  contract,  which  was  intended  to  give  stability  to  the  trans- 
actions of  life,  by  enabling  men  to  put  their  acts  and  agreements 
in  a  form  that  should  be  beyond  the  reach  of  the  uncertainty 
incident  to  oral  testimony,  and  would  be  of  comparatively  little 
value  if  witnesses  could  be  called  to  prove  that  stipulations  omit- 
ted, with  the  knowledge  and  assent  of  both  parties,  were,  not- 
withstanding, meant  to  be  as  binding  as  if  they  had  been  set  forth 
in  terms/ 

§  1301.  The  weight  of  authority  is  decidedly  in  favor  of  hold- 
ing, that  a  man  who  is  so  ill  advised  as  to  execute  a  Avritten  con- 
tract, in  reliance  on  a  promise  that  it  shall  not  be  literally  enforced, 
must  submit  to  the  loss  if  he  is  deceived,  and  that  he  cannot  ask 
.that  a  principle  of  great  moment  to  a  community,  shall  be  made 
to  yield  for  the  sake  of  relieving  him  from  the  consequences  of 
his  own  indiscretion.^  But  this  does  not  apply  to  those  cases  when 
the  writing  accidentally  fails  to  express  the  agreement,  and  w4iere 
it  is  executed  in  ignorance  of  the  mistake.  For  where  the  vari- 
ance is  not  known,  neither  party  can  be  charged  without  willfully 
exposing  himself  to  the  consequences.  Under  these  circumstances 
parol  evidence  is  admissible  in  equity  to  prove  the  mistake,  and 
to  show  in  what  particulars  the  contract  actually  entered  into, 
differs  from  that  reduced  to  writing.' 

§  1302,  Courts  of  equity  exercise  this  branch  of  jurisdiction, 
with  much  caution,  and  refuse  relief  unless  the  grounds  on  which 
it  is  sought  are  clear  and  unequivocal.* 

The  question  arose  in  an  insurance  case,*  where  it  was  said 
that  the  plaintiff  could  not  show  that  he  had  effected  the  insur- 

'  Fulton  V.    Hood,  34  Pa.  St.  365;  320;    Williau  v.    Willian,    16  Vesey, 

Wheelton   v.   Hardisty,   8   Ell.   &  B.  72;   Bellows   v.   Stone,  14  N.  H.  175 

232;   Cozzens  v.  Stevenson,  5  S.  &  R.  Worden  v.   Haviland,  18  Conn.  101 

421.  Langdon  v.  Keith,  9  Vt.  299;  Lancker 

*  Wilson  V.  Watts,  9  Md.  355;   An-  v.   Rex,   20  Pa.   St.   464;   Larkins  v. 

drew  V.  Spurr,  8  Allen,  412;  Howard  Biddle,  21  Ala.  557;  Trick  v.  Fulton,  3 

V.  Thomas,  12  Ohio  St.  201;  Bingham  Gratt.  193;   Ross  v.  Wilson,  15  Miss. 

V.   Rogers,   17  Mass.  571;   Irnham  v.  783. 

Child,    1    Brown    Ch.    92;    Cook  v.  '»  Hall  v.   Claggett,  2  Md.  Ch.  153; 

Eaton,  16  Barb.  439;  Thurston  v.  Lud-  Pliilpot  v.  Elliott,  4  Md.  Ch.  273. 

wig,  6  Ohio  St.  1.  5  Plumb  v.  Ins.  Co.,  18  N.  Y.  385; 

3  McCann  v.  Letcher,  8  B.  Men.  Chaffee  v.  Ins.  Co.,  18  N.  Y.  376. 


1446  Estoppel. 

ance  on  tlie  faith  of  a  promise  by  the  agent  of  the  insurers,  that 
the  policy  should  not  be  vitiated  by  the  inaccuracy  of  the  survey, 
because  tlus  would  be  in  direct  opposition  to  the  warranty  con- 
tained in  the  policy  ;  but  he  was  permitted  to  show  that  the 
agent  of  the  insurance  company  prepared  the  survey,  and  was 
thus  excluded  from  the  warranty,  the  presumption  of  which  was, 
that  the  warranty  refeiTcd  to  the  act  of  the  insured,  not  the 
insurers.  But  when  the  peculiar  nature  of  the  case,  or  from  the 
circumstances,  it  can  be  shown  in  accordance  with  the  established 
rules  of  evidence,  that  the  contract  cannot  be  enforced,  as  it 
stands,  without  a  breach  of  faith,  relief  may  be  granted  in  equity, 
or  under  the  principles  of  equitable  estoppel  at  law.' 

§  1303.  The  estoppel  in  pais,  as  applied  to  mercantile  trans- 
actions, may  be  taken  advantage  of  by  a  plea  containing  the 
necessary  averments,  and  concluding  with  a  prayer,  whether  the 
defendant  shall  be  admitted  to  say  that  the  bill  which  he  has 
accepted,  was  not  made  by  the  party  whose  name  is  affixed  as 
drawer.  When  a  party  to  a  bill,  as  an  acceptor  or  indorser,  is 
concluded  from  denying  a  fact,  as,  for  example,  the  drawing  of 
a  prior  indorsement,  the  estoppel  may  be  applied,  or  it  seems  that 
the  plaintiff  may  demur.'  For  estoppels  in  pais  are  not  pleaded 
but  are  in  general,  given  in  evidence,  and  will,  prima  facie, 
operate  as  effectually  to  estop  the  party  under  the  direction  of  the 
court.^     So,  that  a  party  without  pleading  it,  may  take  a*dvantage 

>  Wood  V.  Dwarris,  11  Exch.  493.  453;   Gregg  v.  Wells,  10  A.  &  E.  90; 

«  Sanderson  v.  Coleman,  /m.  &,.  G.  Coles  v.  Bank,  10  A.  &  E.  437;  Gains 

209;  Lyon  v.  Reed,  13  M.  &  W.  285;  v.  Ins.  Co.,  43  Wis.  108;   Railway  v. 

Armani  v.    Castrique,  13  M.   &  W.  Woodcock,  7  M.  &  W.  574;   Cornisli 

443.  V.  Abingdon,  4   H.  &   N.  549;   Baliia 

3  Canal  Co.  v.  Hathaway,  8  Wend.  Co.,  in  re,  3  L.  R.  Q.  B.  584;  Railway 

480;  Reed  v.  Pratt,   2  Hill,  64;  Peo-  v.  Daniel,   2   Q.  B.    281;   Sandys  v. 

plev.  Turnpike   Co.,   23  Wend.  222;  Hodgson,  10  A.  «&  E.  472;  DowneS  v. 

Bill  V.    Richards,   2    H.    «fc  N.    311;  Cooper,   2  Q.    B.    526;    Freeman    v. 

Hostler  v.  Hays,  3  Cal.  302;  Alexander  Cooke,  2  E.xch.  654;  Clarke  v.  Hart,  6 

V.  Walter,  8  Gill,  239;   Kieran  v.  San-  H.  L.  656;  Newton  v.  Lidgard,  12  Q.- 

ders,  6  A.  &  E.  515:  Phillips  v.  Blair,  B.  925;  Howard  v.  Hudson.  2  E  &  B. 

38  Iowa,  649;   Mayer  v.  Ram.sey.  46  1;  Dunston   v.  Patterson,  2  C.  B.  (N. 

Tex.  372;  Vaughan  v.  Mathews,  18  L.  S.)  495;  Simpson  v.  Ins.  Co.,  2  C.  B. 

J.   Q.   B.   191;   Caldwell  v.  Augur,  4  (N.  S.)  257;  .Jordan  v.  Money,  5  H.  L. 

Minn.  217;  Johnson  v.  Byler.  38  Tex.  C.   185;   Tyerman  v.  Smith,   fi  E,  & 

610;   Coleman    v.   Pearce,    20    Minn.  B.  719;   White  v.  Greenish,  11  C.  B. 

128;  Cox  v.  Caanon,  4  Bing.  (N.  C.)  (N.  S.)  209;  Aslipitel  v.  Bryan,  3  B.  & 


How  Made  Available.  1447 

of  this  estoppel  derived  from  the  rule  laid  down  in  Pickard  v. 
Sears,  where  one  bj  his  conduct  willfully,  &c.  By  the  term  will- 
full}^  in  this  rule,  it  must  be  understood  that  the  party  against 
whom  this  estoppel  is  sought  to  be  made  available,  means  that 
his  representation  to  be  acted  on  accordingly,  and  in  most  cases 
■within  the  rule,  the  representation  is  such  as  to  amount  to  a  con- 
tract or  license  of  the  party  making  it.  They  may  be  pleaded 
as  well  as  those  by  record  and  deed.' 

§  1304.  A  party  who  claims  that  another,  seeking  to  enforce 
his  rights,  shall  not  be  permitted  to  allege  and  show  the  truth, 
must  establish  that  he  has  been  induced,  by  his  faith  in  or  reli- 
ance upon  the  assertions  or  acts  of  such  party  to  the  contrary,  to 
do  some  act,  or  incur  some  liability,  which  would  make  it  injuri- 
ous to,  or  a  fraud  upon  him  to  allow  the  truth  to  be  shown.  A 
party  setting  up  an  estoppel  must  be  personally  misled  or  deceived 
by  tlie  acts  which  constitute  the  estoppel  alleged  ;  he  must  have 
trusted  to  them,  in  some  particular  business  transaction.''  It  is 
said,  that  facts  relied  upon  as  an  estoppel  in  pais  must  be  specially 
pleaded  ;  otherwise  evidence  of  them  cannot  be  received.^  Thus, 
it  was  said  that  if  it  should  be  conceded  that  the  evidence  shows 
that  appellant,  notwithstanding  the  fact  was  otherwise,  represented 
that  he  held  the  money  to  pay  appellees,  and  promised  to  do  so, 

S.  474;   Saaderson  v.  Colman.  4  Scott  Wilson  v.  Castro,  31  Cal,  420;  Ackley 

N.   R.    638;  Lyon  v.  Reed,  13  M.  &  v.  Dygert,  33  Barb.  176;  Lawrence  v, 

W.  285;  Darlington  v.   Pritchard,  4  Brown,  5  N.  Y.  394;  Bank  v.  White, 

M.    &    G.    783;    Halifax  v.   Lyle,  3  6  N.  Y.   236:   Cadwell   v.  Colgate,  7 

Exchq.  446;  Veale  v.   Warner,  1  W.  Barb.  253;  Keeler  v.  Davis,  5  Duer, 

Saund.  576;   Vaughn  v.  Mathews,  18  507;  Andrews  v.  Bond,  16   Barb.  633; 

L.  J.  Q.  B.  191:  Bank  v.  WoHaston,  3  Simpson   v.  Pearson,  31   Ind.  1;  Mc- 

Harring.    90;   Waddle   v.    Morris,  26  Kinzie    v.    Steele,    18    Ohio    St.    38; 

Wis  613;   Manning  v.  Cogan,  49  N.  Donaldson  v.  Hall,  2  Daly,  325;  State 

H.  331 ;  Blake  V.  Barnett,  61  Iowa,  79.  v.    Pepper,   31   Ind.    76;    Devries    v. 

'  Darlington   v.  Pritchard,  2  Dowl.  Haywood,  64  N.  C.  83;   Alexander  v, 

N.    S.  664;   Sanderson  v.  Collman,  4  Walter,  8  Gill,  239;  Piper  v.  Gilmore, 

Scott    N.    R.    638;    Gaylord  v.    Van  49  Me.  149;  Reeves  v.  Mathews,  17 

Loan,  5  Yf  end.  308.  Ga.   449;    McClellan  v.    Kennedy,   8 

2  Garliughouse  V.  Whitwell,51  Barb.  Md.  230;  Brown  v.  Bowen,  30  N.  Y. 

208  ;   Malony  v.  Horan,  12  Abb.  P.  519;   Watson  v.  Hewett,  45  Tex.  472; 

(N.  S.)  289;  Fitts  v.  Brown,  20  N.  H.  Plumb  v.  Ins.  Co.,  18  N.  Y.  392. 

393;  Catlin  v.  Grote,  4  E.  D.   Smith,  »  Bray    v.    Marshall,   75    Mo.    327; 

296;  Diller  v.   Brubaker^    52  Pa.  St.  Maxwell  v.  Longenecker,  89  111.  102; 

498;  Jewett  v.  Miller,  10  N.  Y.  402;  Tallman  v.  Varick,  5  Barb.  277. 


1448  Estoppel. 

upon  tlicir  completing  the  work,  and  that  they,  relying  upon  this 
rej)ivscntation  and  promise,  did  coni])lote  tlie  work,  and  it  should 
tliereupon  be  liehl  that  ai)pellant  is  estopped  to  deny  tlie  trutli  of 
what  lie  represents,  and  must  make  good  his  promise.  Yet  there 
coitld  he  no  recovery  without  a  sj^ecial  count  in  the  declaration 
averring  the  facts}  So,  in  a  late  case  in  Indiana  it  was  said,  "  a 
settled  rule  of  pleading  is  that  estoppels  must  be  specially  pleaded, 
and  jilcaded  with  great  particularity  and  precision  leaving  noth- 
ing to  intendment.-'  This  rule  proceeds  upon  the  theory  tliat  as 
an  estoppel  concludes  a  party  from  asserting  the  truth,  all  things 
essential  to  give  the  right  to  shut  out  the  truth,  should  affirm- 
atively appear.''  An  owner  of  property,  who  stands  by  and  sees 
a  tliird  party  sell  it  under  claim  of  title,  without  asserting  his  own 
title,  or  giving  the  purchaser  any  notice  of  it,  is  estopped  as 
against  such  purcliaser,  from  asserting  it  afterwards.  In  such  a 
case  the  purchaser  need  not  show  by  further  pi-oof  that,  such 
owner  intended  to  influence  or  did  influence  his  conduct  in  mak- 
ing the  purchase;  since  the  law  v^-ill  &o  presume  from  the  facts 
stated."  But  it  may  be  shown  that  the  purchaser  had  received 
information  as  to  the  title  from  a  stranger,  as  the  testimony  may 
be  contradicted.* 

§  1305.  Equitable  estoppels  growing  out  of  acts  in lyais^  con- 
stitute an  exception  to  the  general  rule,  and  are  equally  conclusive 
whether  pleaded  or  given  in  evidence.  This  is  peculiarly  true,  of 
estoppels  in  pais,  which  generally  arise  out  of  a  great  variety  of 
circumstances  that  cannot  well  be  set  forth  with  the  precision  and 
brevit}'  required  for  good  pleading,  except  where  otherwise  pro- 
vided by  statute. 

§  1306.  Ill  many  states  the  estoppel  arising  from  fraud  and 
misrepresentation  of  the  title  to  land,  is  a  good  defense  at  law  in 
an   action   of  ejectment.^     Nor   need  they   in    certain    cases    be 

'  3Iax\\-oll   V.    Longenecker,  80   111.  <  Fecklcy  v.  Barr.  G6  Pa.  St.  796. 

102.  5  Nixon'  v.    Carco,    28    Miss.  414; 

^  Anderson  v.  ITubboll,  93  Ind.  570;  Thompson  v.  Sanborn,  11  N.  H.  201; 

S.  C,  47  Am.  R.  394;  Louis  v.  City,  79  Gove  v.  White,  23   Wis.  282;   Brown 

Ind.  452;   Robbins  v.  ilagee,  76   Ind.  v.   Wheeler,    17   Conn.  345;   Reed  v. 

881;   Lash   v.    llcDdell,   75  Ind.   475;  Bensley.  2  B.  Men.  254;  Hamilton  v. 

Wood  V.  Ostran,  29  Ind.  177.  Hnmilton,  4  Pa.  St.  193;   Slieplcy  v. 

3  Vilas    V.    Mason,    25    Wis.    310;  Ruiigley,  2  I^.  &  M.   213;  Mayer  v. 

Arnold  v.  Comman,  50  Pa.  St.  361.  Ramsey,   46  Tex.  372;   ))ickeison  v. 


How  Made  Available. 


1449 


pleaded  in  order  to  make  them  obligatory.  Where  one  party  read 
a  deed  in  evidence,  signed  by  certain  persons  as  executors,  it  was 
held  to  operate  as  an  admission  that  they  were  such  executors  in 
lien  of  proof  to  that  effect  by  the  other  party.'  A  court  of  equity 
will  enjoin  a  party  from  setting  up  an  unconscientious  defense  at 
law,  or  from  interposing  impediments  to  the  just  rights  of  the 
other  party.* 

§  1307.  A  party  who  sets  up  an  estoppel  in  pais  as  a  bar  to 
receiving  evidence  contrary  to  the  repsesentation  made  to  him  by 
another,  must  show  that  there  was  a  willful  intent  to  make  him 
act  on  the  faith  of  the  representation,  and  that  he  did  so  act.' 
Estoppels,  whether  claimed  as  of  record  or  in  pais^  must,  to  be 
such,  be  within  the  principle  which  gives  them  force  before  they 
will  be  effectual.* 


Colgrove,  100  U.  S.  579;  Dickerson  v. 
Board,  6  Ind.  128;  Concord  v.  Norton, 
16  F.  R.  477;  Johnson  v.  Byler,  38 
Tex.  610;  Pool  v.  Lewis,  41  Ga.  163; 
Davis  V.  Davis,  26  Cal.  23;  Lee  v. 
Gettj-.  26  111.  76;  Kirk  v.  Hamilton, 
103  U.  S.  68;  Shears  v.  Walker,  1 
Head,  166;  Dodge  v.  Stacy,  39  Vt.  658; 
Phillips  v.  Blair,  38  Iowa,  649;  Noble 
V.  Chrisman,  88  111.  87;  Halloran  v. 
Whitcomb,  43  Vt.  306;  Rangely  v. 
Spring,  28  Me.  127;  Buckholder  v. 
Edwards,  16  Ga.  597;  Fisher  v. 
Milmine,  94  111.  328;  Shaw  v.  Beebe, 
35  Vt.  209;  McCafferty  v.  Conover, 
7  Ohio  St.  99;.  Kelly  v.  Hurt,  74  Mo. 
561;  Evans  v.  Snyder,  64  Mo.  515; 
Follansbree  v.  Kilbreth,  11   111.  522; 


Mariner  v.  R.  ,R.  Co.,  36  Wis.  84; 
Collins  v.  Rogers,  63  Mo.  515;  Steven- 
son V.  Saline  Co.,  65  Mo.  425;  Sayles 
V.  Smith,  13  Wend.  57,  Spiller  v. 
Scribuer,  36  Vt.  245;  Ante,  Ch.  XV. 

'  Walton  V.  Newsom,  1  Humph.  140. 

2  2  Story  Ev.  §  903;  McPherson  v. 
Walters,  16  Ala.  714;  Walker's  Heirs 
V.  Murphy,  34  Ala.  591;  Smith  v. 
Mundy,  18  Ala.  183;  Stone  v.  Britton, 
23  Ala.  543;  Deleplaine  v.  Hitchcock, 
6  Hill,  14. 

2  Andrews  v.  Lyon,  11  Allen,  349; 
Plumer  v.  Lord,  9  Allen,  455;  Piper 
V.  Gilmore,  49  Me.  149;  Wythe  v. 
Salem,  4  Sawyer,  88. 

*  McKennahan  v.  Crawford,  59 
Pa.  St.  390. 


INDEX. 


INDEX. 


[Meferences  are  to  pages.] 


Abandonment  and  Surrender — 

doctrine  in  regard  to,  1003,  1006 
Abatement — 

failing  to  file  plea  in,  binds  parties,  298 
judgment  on  plea,  of  what  conclusive,  232 
plea  of,  when  available  against  another  action,  251 
Abolishment — 

of  fictitious  forms  renders  judgment  in  ejectment  conclusive,  221 
Absolute  Verity — 

of  records,  19 
Acceptance- 
admits  drawer's  signature,  1132 
by  an  heir  of  purchase  money  estops  him,  910 

official  of  his  salary  waives  claim  for  more,  1198 
public,  of  dedication,  effect  of,  12S2 

mortgagee  estops  him  from  denj'ing  the  power  to  execute  mortgage, 
1022,  1023 
of  an  amount  estojis  further  prosecution  of  claim,  1197 
damages  for  laying  out  highway,  a  dedication,  1288 
a  deed  when  it  estops  party,  1008 

devise  estops  devisee  to  set  up  title  in  opposition  to  the  will,  1014 
an  estate  creates  an  estoppel,  1011 
indenture  binds  grantee,  724 
judgment  as  merger,  49,  560 

money  from    a  debtor  estoppel  to  deny  right  of  redemption,  1199 
mortgage,  waives  vendor's  lien,  9G8,  969 
part  payment  of  a  claim,  when  an  estoppel,  1197 

[1453] 


1454  Index.  [Jie/crencee 

Acceptance  (continued). 

of  partial  allowance  of  a  claim  an  estoppel.  1198 

policy  of  insurance  estops  \r<xrty  from  denying  his  obligation,  1357 
possession  under  a  deed  when  it  creates  an  estoppel  Jn  ^Jrti«,  976 
premium  with  notice  of  prior  insurance,  a  waiver,  1356 
proceeds,  as  a  ratification,  1199 

on  final  settlement  bars  action  for  the  residue,  1197 
purchase  money  ratifies  sale,  1181 
rent,  an  estoppel,  1)08,  069,  1173,  117-i 

from  assignee  juecludes  claiming  a  forfeiture,  1175 
sura  awarded  bars  an  action  for  interest,  1198 
Acceptiug — 

an  award  for  damages,  conclusive  as  to  amount,  1198 
benefits  of  a  void  act  prevents  party  from  contesting  it,  1198 
deeds  recognizing  a  highway,  estoppel  on  party,  i)2'-i 
office  in  a  cor])oration  estops  party  from  denying  its  existence,  1402 
Acceptor— 

of  bill  estopped  from  setting  up  forgery,  1132 
statement  made  to,  when  an  estoppel,  1223 
application  of  estoppels  to,  1132,  1133 
Accouipauyiug  Opiuioii — 

when  it  will   be  regarded  as  explaining  a  decree,  470 
Account — 

decree  settling,  conclusive,  381 
Accountiug  — 

judgment  on,  conclusive  as  to  all  firm  matters,  232 
Ackuowledgment— 

by  mortgagor  that  he  has  no  defense  estops  him,  1028 
certificate  of,  amount  of  proof  required  to  impeach,  733 
by  married  women,  731,  785 
conclusive  effect  of,  731,  735 

as  a  judicial  act,  731,  735 
except  in  case  of  fraud,  732 
doctrine  of  the  U.  S.  Supreme  Court  in  regard  to,  733,  735 
fraud  to  impeach  must  be  brought*to  the  grantee,  732,  733 
of  forged  signature,  prevents  setting  up  plea  of  N^on  est  factum^  1131 
payment  of  premium  estops  company  denying  it,  1341 
Acquiescence — 

and  ratification  as  estoppels,  895 

applies  between  trustee  and  Cestui  que  trust,  1195,  1196 
as  an  estoppel,  894,  895 

by  bondholder  when  a  ratification  and  binding,  1218 
infant,  when  an  estoppel,  1257,  1258 
party  in  a  Ijoundary  line,  an  estoppel,  1270,  1271 
shareholder  when  an  estoppel  to  question  corporate  acts,  1323 
a  third  party  may  bar  actions  for  relief,  1191,  1192 


are  to  pages.]  InDEX.  1456 

Acquiescence  (continued). 

by  wife  in  iraprovemeDts  made  on  her  property,  1245,  1246 
doctrine  in  regard  to,  llSl,  1190 

estoppel  by,  founded  on  knowledge  of  party  of  his  rights,  1157 
express  or  tacit,  when  an  estoppel,  1096. 
for  twenty  years  in  an  easement  an  estoppel,  1109 
imports  and  is  founded  ou  knowledge,  1157,  1193 
in  an  improper  sale  prevents  party  setting  it  aside,  1196 
reduction  of  salary,  895 

seeing  another  deahng  with  property  without  objection,  1192,  1193 
length  of  time  necessary  to  create  boundary  line  by,  1273 
of  married  women  in  judicial  proceedings,  when  presumed,  1250 
when  an  estoppel,  1232 
mortgagee  in  conveyance  of  property  by  the  owner,  1042,  1043 
owner  of  land  in  costly  erections,  1082,  1083 
party,  in  taking  laud  by  railroad  company,  1388,  1389 
stockholder  in  illegal  act,  1409 
what  necessary  to  fix  it  upon  party,  1193 
when  it  becomes  binding  as  an  estoppel,  894 

creates  an  estoppel  to  land,  1062,  1063 
with  knowledge  estops  party,  1192 
Acquiescing — 

in  act  of  agent  after  it  is  done  binds  principal,  1211 
judgment  makes  it  Hes  judicata,  40 
title  of  another,  lOlG,  1017 

prevents  party  setting  up  adverse  claim,  1200 
Acquiring" — 

a  new  title  entitles  party  to  a  new  trial  in  ejectment,  225 
Acquittal — 

judgment  of,  in  action  for  malicious  prosecution,  483 
Act- 
calculated  to  mislead  and  that  has  misled,  an  estoppel,  1078 
of  legislature  when  it  may  prevent  state  from  questioning  boundaries, 
1270 
principal,  when  it  operates  against  his  sureties,  1223 
or  admission  must  .have  influenced  pai'ty  claiming  benefit,  1073 
Acting — 

on  instruments,  estoppel  by,  930 
so  as  to  induce  party  to  purchase  a  note,  1117 
Action — 

brought  by  principal  ratifies  agent's  acts,  1219 

by  receiver  ou  premium  note,  maker  estopped,  1357 

defined,  26 

form  of,  immaterial  to  an  estoppel,  98 

in  which  judgment  is  first  recovered,  bars  other,  251 

is  by  same  parties  if  between  their  agents  or  representatives,  163,  164 


1456  Index.  \_Referencea 

Action  (continued). 

judgment  in  on  note  bars  action  for  fraud  in  obtaiaing  it,  279 
jurisdiction  of,  when  necessary,  70 
matters  presented  in,  how  concluded,  236 
of  ejectment  conclusive  from  what  time,  223 

trespass,  judgment  in,  effect  of,  151 
on  two  counts,  when  conclusive  on  one  only,  235 
what  is  the  same  cause  of,  331 

when  not  founded  on  a  deed,  recitals  work  no  estoppel,  754 
Actions— 

agamst  judges  for  excess  of  jurisdiction,  507 

brought  for  same  cause,  defeated  by  plea  of  Hes  judicata,  561 

classitication  of.  27,  38 

classified  by  Bracton,  27,  29 

Gaius,  29,  31 
defined  by  Burgundus,  37 

Justinian,  32,  37 
distinguished,  27,  28 
divisible  and  indivisible,  246,  256 
doctrine  in  regard  to  election  of,  1178,  1179 

effect  of  judgments  in,  where  part  of  cause  only  is  sued  for,  246,  256 
entire  cause  of,  cannot  be  split  or  divided,  246,  256 
for  mesne  profits,  effect  of  judgments  in  ejectment,  in,  222,  223 
how  defined  in  the  Roman  Law,  76 
in  courts  of  justices  of  the  peace,  effect  of,  403,  404 
ordinary  when  Jn  rem,  374 

ecclesiastical  courts  when  ]n  rem,  374 

inferior  courts  in  excess  of  jurisdiction,  void,  403 

orphans'  courts,  when  In  rem,  374 
In  2^ersonnm,  27,  38 

defined,  34 
in  probate  courts,  when  In  rem,  374 
In  rem,  27,  28 

defined,  33 
in  spiritual  courts,  wlien  In  rem,  374 

surrogates  courts,  when  In  rem,  374 
none  against  judge  for  matters  within  his  jurisdiction,  507 
of  county  boards,  county  courts,  etc.,  conclusiveness  of,  517,  524 

court  may  be  either  summary  or  formal,  156 
on  judgments  of  other  states,  what  defense  is  open  in,  636 

policies  of  insurance,  when  judgment  In  rem  conclusive,  581  li 

premium  notes  estop  maker  from  den3nng  an  insurable  interest,  1358 

running  account,  judgments  on,  249 
prematurely  brought,  judgment  on  no  bar,  332,  333 
real,  juugmeuts  in,  when  an  estoppel,  93 
rule  as  to  splitting,  247,  252 


are  to  pages.]  IndeX.  1457 

Actions  (continued). 

when  not  between  the  same  parties  though  the  same  persons,  94 
which  partake  of  the  nature  of  proceedings  In  rem,  374 
Acts — 

done  within  the  power  of  corporation,  binds  all  parties,  1366 

for  which  courts  of  equity  will  set  aside  judgments,  463 

In  pais  that  estop  owner  from  denying  dedication,  1286,  1287 

which  amount  to  a  dedication,  1283 
of  agents  binding  on  corporations  same  as  natural  persons,  1299,  1360 
exercised  in  public,  binding  on  jn'incipal,  1207 
outside  of  his  authority,  when  binding  on  principal,  1206 
when  conclusive  on  insurance  companies,  1331,  1359 

presumed  to  be  ratified  by  principal,  1216 
which  bind  principal,  1202,  1205 
another  must  be  disaffirmed  or  will  be  conclusive,  1218 
bank  directors  which  ratify  cashier's  actions,  1330,  1331 
corporate  officers,  when  binding  creditors  and  third  persons,  1402 
de/acto  officers  binding  on  corporations,  1306 
married  woman  influencing  party  operate  as  estoppels,  1246,  1247 

on  which  others  have  acted,  bind  her  by  estoppel,  1249 
oflBcers  and  agents,  when  binding  on  municipal  corporations,  1218 

within  the  scope  of  their  authority  estop  state,  1264 
parties  that  estop  them  from  setting  up  title,  888 

which  estop  them  from  denying  corporate  capacity,  1395,  1409 
party  or  agent  may  create  an  estoppel  In  pais,  1200 
ratification  by  mortgagor,  an  estoppel,  729 
or  admissions  if  they  deceive,  create  estoppels,  1096 
which  become  estoppels,  862 
conduct  on  part  of  insurer  which  waive  a  breach  of  policy,  1347,  1348 
knowledge  of  officers  binding  on  insurance  companies,  1353 
which  are  considered  as  a  waiver  of  forfeiture,  1347 

cannot  be  contravened  without  fraud,  efl:ect  of,  861,  862 
have  been  adjudged  to  be  estoppels  In  pais,  886 
and  admissions  of  married  woman,  when  they  bind  her,  1245, 
1246 
declarations  designed  to  influence  another,  1085 

not  the  only  grounds  of  estoppel,  1091 
when  an  estoppel  i«jj«  is,  2 
representations  must  have  influenced  party  claiming  an  estoppel,  885 
of  married  women  that  are  estoppels,  1235,  1237 
Additional  Insurance — 

failure  of  agent  to  note,  binds  company,   1345 
waiver  in  regard  to,  1344,  1345 
Adjudication — 

binds  sureties  as  well  as  parties,  212,  213 
by  a  competent  tribunal  conclusive  between  same  parties,  232 
92 


1458  Index.  [References 

Adjudication  {continned). 

in  an  action  to  recover  taxes,  of  what  conclusive,  233 
bankruptcy  assailable  onl}'  in  a  direct  proceeding,  346 
a  procecdiug  Iii  reniy  286,  34G 
does  not  divest  state  court  of  jurisdiction,  286 
principles  of  conclusiveness  in  regard  to,  2&4,  288,  346 
of  courts  of  different  jurisdiction,  when  binding,  109 

limited  powers,  when  conclusive,  420 
of  one  item  of  account  bars  action  on  balance,  235 
questions  of  service  conclusive,  419 
specific  facts,  how  made  available,  97 
the  whole  includes  part,  89 
on  equitable  titles  in  ejectment,  220 

questions  of  revivor  of  judgment  conclusive,  137 
right  or  title,  conclusive  between  parties  and  privies,  233 
rule  to  show  cause,  conclusive,  137 
title  to  land  by  a  foreign  court,  conclusive,  597 
upon  the  status  of  a  person,  37,  38 
Adjustment— 

with  full  knowledge,  when  a  waiver  of  forfeiture,  1352 
Admitting — 

a  person  as  a  member  of  a  corporation,  estoppel  by,  1406 
Adoption — 

and  acquiescence  equivalent  to  ratification,  1157 
of  the  agency  of  part  adopts  the  whole  of  a  contract,  1214 
Advantag^es — 

of  ancient  systems  of  pleading,  102 
Adverse  Possession — 

cannot  originate  while  party  occupies  by  lease,  837 
doctrine  in  regard  to,  1291,  1298 

parties  and  privies  when  estopi^ed  from  claiming,  1292,  1295 
who  cannot  claim  title  by,  1291,  1298 
Adverse  Title— 

cannot  be  set  up  by  lessor  while  in  possession,  983 
Advertisement — 

when  it  operates  as  an  estoppel  In  pais,  923,  924 
published  by  agents,  binding  on  principal,  1207 
Administration — 

bond,  recitals  in,  conclusive,  387 

grant  of  letters,  conclusive  except  as  to  jurisdiction,  403 

irregularities  in  do  not  affect,  387,  403,  404 
on  estate  of  living  j>erson  void,  378 
Administrator- 
appointment  of  cannot  bo  questioned  by  surety,  387 

conclusive,  348,  87(5,  390 
bonajide  dealings  of,  conclusive,  377 


are  to  pages.]  INDEX.  1459 

Administrator  (continue^. 

by  allowing  claims,  estopped  to  deny  validity  of,  1261 
charging  funds  to  one  account  estopped  from  denying  it,  1262 
effect  of  covenant  in  warranty  in  deed  of,  791 
estopped  by  acts  of  his.intestate,  1262 

advising  devisees,  etc.,  1262 
allowing  expenditures  on  property  of  estate,  1263 
charging  money  to  a  particular  fund,  1261 
to  deny  recitals  in  record,  390 
estoppel  of  by  accounting  for  estate  funds,  1261 

delivery  of  property  to  a  devisee,  1261 
silence  at  a  sale,  1104 
executing  deed  cannot  denj'  his  official  capacity,  1262 
judgment  against,  effect  of,  94,  181 
or  agent  may  make  a  valid  dedication,  1280 
recognizing  his  representative  character  conclusive,  1261,  1262 
taking  possession  of  property  as,  estopped  to  deny  title  of  estate,  1261 
when  aflfected  by  estoppels  in  pais,  1261 
estopped  by  private  sale,  1263 
Administrators — 

acts  of  one  bind  the  whole,  1262 
settlement  conclusive,  348,  381 
Admiralty  Courts — 

doctrine  as  to  conclusiveness  of  judgments  in,  349 
judgment  of  acquittal,  conclusive,  349 

condemnation  conclusive  on  the  world,  349 
sale  on  judgment  of  passes  indisputable  title,  334,  349 
sentences  in,  a  bar,  107 
Admiralty — 

decrees,  when  enforced  by  courts  of  other  countries,  577,  578 
foreign  judgments  in,  conclusive  effect  of,  573,  586 
judgments  in  courts  of,  conclusive,  349 
proceedings,  in  rem,  conclusive  on  the  whole  world,  349 
Admissibility — 

of  judgment  to  establish  its  own  existence,  334 

record  between  same  parties,  what  dependent  on,  258 
Admission — 

by  debtor  bars  defense  in  suit  by  purchaser,  1117 
party  that  he  is  stockholder,  estoppel  of,  1395 
payment  of  money  in  court,  effect  of,  964,   965 
effect  of  depends  on  purpose  for  which  it  was  made,  950 

where  possession  of  property  is  obtained  on  the  faith  of,  919 
of  improper  evidence,  when  an  estoppel,  950,  951 

maker  of  note,  when  an  estoppel,  1112 
that  a  note  is  all  right,  an  estoppel,  1121 
title  exists,  what  it  implies,  1000 


1460  Index.  [Ee/ercnces 

Adiuissiou  {continued). 

as  to  boundary  lines,  effect  of,  1275 

by  attorneys,  when  they  operate  as  estoppels,  941 

way  of  demurrer,  conclusive  effect  of,  944 
conclusiveness  of,  862,   808  . 

extension  of  the  principles  regarding,  in  England  and  America,  861 
in  a  deed,  when  they  obviate  pleading  an  estoppel,   1449 
deeds  that  are  conclusive,  747,  748 
legal  proteedings,  what  necessary,  to  be  conclusive,  1423 
pleadings  not  denied,  conclusive,  944 
statutory  and  other  bonds,  conclusive,  7G7,  773 
intended  to  influence  the  conduct  of  party  are  estoppels  914,  919.     " 
judicial  us  estoppels,  940 
made  in  the  trial  of  a  cause  conclusive,  964 
of  attorneys  must  be  formal  to  create  estoppels,  941,  942 

law  or  fact,  when  conclusive  against  party  making  them,  889 
married  woman  in  judicial  proceedings,  when  an  estoppel,  1249,  1250 
party,  how  regarded  in  law,  862 
solemn  and  unsolemn,  effect  of,   861 
that  are  known  as  equitable  or  estoppels  in  jjais,  861 
substitutes  for  ordinary  and  legal  proof,  862 
have  been  acted  upon,  effect  of,  861 
under  seal,  conclusive,  767 
upon  which  legal  proceedings  are  taken,  an  estoppel,  888 

which  are  estoppels  in  pais,  8,  938 
and  acts  in  2}ais,  when  they  operate  as  estoppels,  950 
Affidavit  — 

of  loss  estops  party  from  denying  material  facts  therein,  1359 
Affinnance — 

of  void  sale  by  receiving  proceeds  thereof,  1197« 
After-acquired — 

personal  property,  when  it  passes  by  mortgage,  1035 
title,  doctrine  in  regard  to  based  on  covenant  of  warranty,  805,  806 
of,  applicable  to  leases,  834 

the  civil  law  in  regard  to  passing,  779,  780 
does  not  inure  when  an  interest  passes,  808 

where  lessee  no  legal  estate,  834 
eftect  of  covenants  of  warranty  in  passing,  783,  784 
extraordinary  effect  of  esto]>pcl  in  passing,  781 
forms  of  conveyance  which  operate  to  pass,  783,  784 
how  affected  by  covenants  running  with  land,  806,  807 
inures  to  mortgageee,  1018 

where  conveyance  is  made  of  a  defective  title,  779 
nature  of  doctrine  in  regard  to  its  passing  by  estoppel,  803,  805 
of  a  party,  when  it  passes  by  his  deed  as  guardian,  807 
administrator,  when  it  passes  by  his  deed,  791 


are  to  pages.']  InDEX.  1461 

After-acquired  (continued). 

title  of  heirs  passes  by  deed  of  ancestor,  791,  807 

mortgagor,  why  it  passes  to  mortgagee,  794,  800 

when  transfeiTed  in  equity,  799 
patentee  passes  when  he  obtains  it,  785,  786 
vendor  inures  to  benefit  of  vendee,  786 
passes  by  a  covenant  against  all  claims  and  demands,  791 

deed  which  purports  to  convey  an  absolute  title,  787 
covenants  of  non  claim,  789,  790 
estoppel,  doctrine  in  regard  to,  777,  833 
reason  of  covenants  of  warranty  in  a  deed,  788 
instantly,  on  being  acquired,  by  force  of  warranty,  788,  789 
though  conveyed  by  an  undefined  interest,  829 
party  is  discharged  as  bankrupt,  806 
-    to  grantee,  under  a  conveyance  with  warranty,  778 

where  none  passed  by  conveyance,  785,  786 
lessee,  781,  782 
where  lessor  has  no  title  at  time  of  demise,  787 
passing  by  estoppel  depends  on  intention  of  grantor,  781,  7&2 

to  mortgagees,  794,  800 
of  a  woman  prior  to  marriage,  when  it  passes,  791 
principles  applicable  to,  vesting  it  in  a  grantee,  802,  805 
what  requisite  to  pass,  807 
when  it  inures  to  the  grantee,  heirs,  etc.,  792 
passes  a  homestead  right,  786 

by  a  covenant  in  a  quit-claim  deed,  815, 
deed  of  release,  784,  785 
an  executor,  792 
corporation,  793 

mortgage  with  warranty,  794,  800 
why  grantor  estopped  to  set  up,  792 
legal  title,  when  it  passes  to  grantee  of  equitable  title,  792 
Agent- 
acting  on  behalf  of  another  cannot  claim  he  was  acting  for  himself,    1221 
acts  and  declarations  of,  when  binding  on  insurance  company,  1332 
collecting  money  for  corporation  estopped  to  deny  its  title  thereto,  1409* 
collecting  money  in  the  name  of  association  cannot  question   its  exist- 
ence, 1406 
contracts  of,  without  knowledge  of  his  rights,  when  binding,  1221 
drawing  application  estops  company,  1355,  1356 
held  out  as  such  by  principal,  binds  him  by  his  acts,  1207 
issuing  a  policy  iifter  knowledge  of  breach,  binds  company,  1334 
laying  out  streets  in  a  town,  dedicates  them  to  public  use,  1289 
making  verbal  contract  to  insure,  binding  on  company,  1332 
may  waive  the  condition  in  regard  to  payment  of  premiums,  1342 
misconduct  of,  when  principal  liable  for,  1204,  1205,  1208 


1462  Index.  [Meferences 

Agent  (continued). 

notice  to,  is  notice  to  principal,  1334 

of  lessor,  estopped  by  lease,  846,  847 

party  may  bind  bis  principal  by  usury,  1221 

penuitting  assignment  of  polic}-,  binds  company,  1331 

receipt  of  premium  by,  binds  company  on  policy,  1342 

statements  within  scope  of  his  authority  binds  principal,  1332,  1333 

when  his  waiver  binds  company,  1334 

when  not  allowed  to  dispute  title  of  another,  1013 

Agents- 
acts  without  authority  may  be  ratified,  and  bind  principal,  1202 
declarations  in  soliciting  a  policy  binding  on  company,  1333,  1334 
delivery  of  policy  without  payment  of  premium,  estops  company,  1342 
fraud  in  receiving  premium,  is  fraud  of  the  company,  1334 
knowledge  is  knowledge  of  company,  1333,  1334 
of  corporations  may  bind  them  by  waiver,  1331 
representations  or  statements,  bind  insurance  company,  1341 
waiver  by,  estops  company  from  taking  advantage  of  condition,  1341 
and  officers  may  bind  company  by  w^aiver  of  conditions  in  policy,  1341 

Agreeing — 

to  boundary  line  in  absence  of  monuments  an  estoppel,  1272 
facts  stated  in  case,  an  estoppel,  964 

Agreement — 

by  neighbors  as  to  boundary  line,  when  conclusive,   1271 

judgment  by,  when  an  estoppel,  41 

by  attorneys,  when  they  operate  as  estoppels,  941 

of  parties  cannot  be  affected  by  a  mistake  in  expressing  them,  902 

to  submit  matters  to  third  parties,  when  conclusive,  933,  936 

Aiding — 

a  deed  by  estoppel,  713 

Alien — 

naturalization  of,  conclusive,  348 

Alienation— 

of  interest  of  one  joint  tenant,  as  an  estoppel,  810 

Alimony — 

judgment  for,  when  conclusive  in  divorce  cases,  238 

All  matters  — 

that  might  have  been  litigated  included  in  Res  judicata,  130 

Allegata  and  Probata— 
must  agree,  1411 

Allegation — 

of  jurisdiction  not  necessary  in  actions  on  foreign  judgments,  664 

in  pleading  or  complaint,  conclusive,  943 

not  denied,  estops  part}',  939 

not  traversed,  conclusive,  944 

that  grantor  has  good  title,  effect  of,  782 


are  to  pages.]  IndEX.  1463 

Alleging— 

title  in  another  estops  party  from  claiming,  340 
Allowance — 

of  claim  by  probate  court,  effect  of,  393,  394 
Allowing — 

another  to  dispose  of  property  estops  owner,  1052 

one  partner  to  claim  property  as  his  own,  estops  firm  from  denying  it,  1230 

party  to  go  into  possession,  when  an  estoppel,  1079 

party  to  procure  additional  security,  postpones  prior  mortgage,  1037 

strangers  to  impeach  judgments  for  fraud,   452 

suit  to  be  brought  for  the  use  and  benefit  of  another,  estops  party,  918 
Alterations — 

of  record,  effect  of,  23 
A  Man — 

can  be  only  estopped  from  denying  what  he  has  once  admitted,  914 
Ambiguity — • 

in  record  will  not  affect  the  estoppel,  237 
Amount— 

of  evidence  necessary  to  impeach  judgment  of  other  states,  665 

Ancestor— 

acquiescence  of,  an  estoppel  on  heirs,  930 

judgment  against,  effect  as  res  judicata,  184 
for  or  against,  binds  the  heir,  202 
Ancient— 

doctrine  of  estoppels  in  pais,  863,  870 

doctrines  in  regard  to  the  plea  of  res  judicata,  77,  96 
Answers— 

statement  in  of  no  defense  conclusive,  943 
Appeal—^ 

from  sentence  of  prize  court,  effect  of,  584 

the  only  remedy  against  irregularities  in  judgments,  58 
Appealing— 

from  judgment  as  a  waiver  of  irregularities,  943 

estops  party  from  questioning  it,  339 
Appearance — 

a  matter  of  statutory  regulation,  71 

in  a  cause  as  a  waiver  of  jurisdiction,  942,  948 

party  entering,  cannot  question  jurisdiction  of  court,  951 
Appellate  Court- 
decision  of  binding  on  inferior  one,  118 

remains  the  law  of  the  case,  118 

judgment  of,  res  judicata,  118,  119 
Application — 

for  injunction,  when  res  judicata,  139 

of  election,  to  judicial  proceedings,  535 
equitable  estoppels  in  courts  of  law,  872 


1464  Index.  {Referencei 

Application  (continued). 

of  equitable  estoppels  to  executors,  guardians,  etc.,  1261,  1263 
judgments,  337,  343 
realty,  806 

shares  of  stock,  etc.,  1324,  1326 
states,  1203,  1265 

the  relation  of  landlord  and  tenant,  969 
estoppels  by  waiver  of  proofs  of  loss,  1348,  1353 
to  boundaries,  1206,  1278 
of  estoppel  to  insurance  companies,  1331,  1359 
mortgages,  1018,  1052 
municipalities  issuing  bonds,  1370,  1383 
stockholders,  1394,  1409 
estoppels  in  pais,  882,  885 

to  every  species  of  property,  872 

instruments  not  under  seal,  1112,  1155 
licenses,  1105,  1110 
prevent  fraud,  882,  885 
prevent  injury  to  others,  918 
principal  and  agent,  1202,  1215 
real  property,  requisites  of,  1053,  1073 
rea  judicata  to  criminal  cases,  485,  507 
estoppels  wi  j9«js  to  tax-payers,  etc.,  1301,  1363 
United  States,  1263,  1204 
where  party  endeavors  to  obtain  undue  advantage,  930,  931 
the  doctrine  of  res  judicata,  117 

maxim  in  regard  to  subsequent  ratification,  1212,  1213 
Appointment — 

of  guardian  or  administrator,  conclusive,  348,  376,  377 
Appraisement — 

waiver  of  sale  without,  963 
Appraisers  - 

selecting  by  debtor,  1096,  1097 
Appropriatini,' — 

proceeds  of  sale  made  by  agent  binds  principal,  1220 
Approval — 

of  deed  by  parent  estops  him  claiming  as  heir,  910 
Arbitration — 

when  binding  on  a  married  woman,  1250 

and  award,  when  it  may  create  an  estoppel  as  to  real  property,  1291 
Arbitrators- 
award  of,  accepting  benefit  under,  effect  of,  532 
at  common  law,  529 
binding  until  set  aside,  529 
binds  jiarties  and  privies,  531 
cannot  be  contradicted  by  arbitrator,  531 


are  to  pages.]  INDEX.  1465 

Arbitrators  (continued). 

award  of,  cannot  be  defeated,  528 

impeached  by  strangers,  531 
money  paid  on  award  of,  cannot  be  recovered,  529 
award  of,  conclusive  against  fraud,  etc.,  531 
conclusiveness  of,  528,  530 
impeachment  of,  527 
merges  all  defenses,  529 
demands,  529 
award  of,  rule  in  Massachusetts  as  "to,  228 

when  it  operates  as  a  judgment,  528,  529 
award,  when  sufficiently  certain,  530 

is  an  entirety,  and  must  be  affirmed  as  a  whole,  531 
effect  of  their  decision,  527 
judgment  on  award  of,  conclusive,  299 
jurisdiction  of,  527 

how  acquired,  530 
Ascertaining — 

test  for,  whether  two  actions  are  for  the  same  cause,  302 
Assent — 

for  twenty  years  to  a  boundary  line,  1266 

of  mortgagee  to  sale  of  property,  1036,  1051,  1052 

owner,  when  it  may  be  inferred  as  to  dedication,  1280 
Assenting — 

to  public  improvements  estoppel  to  deny  power  of  council  to  make,  1361 
sale  of  land,  929 
Assertion — 

of  ownership  by  married  woman  when  it  operates  as  an  estoppel,  1247,1248 
unequivocal  rights  prevented  by  estoppel,  1070 
Assessing — 

a  member  of  a  mutual  company,  effect  of,  1358 
Assessments — 

collection  after  forfeiture,  a  waiver,  1358 
receipt  of  by  insurance  company  with  knowledge,  1358 
Assessor — 

listing  his  land,  estopped  from  setting  up  defects  in  description,  897 
Assignee — 

allowing  bankrupt  to  carry  on  business,  when  estopped,  1154 
bound  by  estoppel  of  lessee,  844 
estopped  bj^  deed  which  estops  his  assignor,  850 
estoppel  in  favor  of  by  certificate  of  mortgagor,  1028,  1029 
for  creditors  when  estopped  by  recitals  in  assignment,  756 
of  corporation,  defense  of  irregular  organization  cannot  be  set  up  against, 
1401 
lessee  cannot  dispute  title  of  lessor,  971 
mortgage,  when  estopped  to  deny  right  of  redemption,  1048 


1466  Index.  [He/erences 

Assignee  (continued). 

purchaser  from,  when  estopped,  756 

recovery  of  judgment  by,  effect  of,  297 

statement  to,  by  maker  of  a  note,  1112 

■when  bound  by  a  judgment,  154,  203 
Assijfnct'S — 

judgments  against,  effect  of,  476 

judgment  in  favor  of,  when  a  bar,  297,  302,  303 

subject  to  the  same  estoppel  as  their  assignors,  977 

when  bound  as  privies,  844,  850 
Assignment — 

of  part  of  claim  no  effect  against  judgment,  246,  247 
Assignor- 
estopped  by  recitals  in  deeds,  764 

of  stock  certificates,  when  estopped  to  claim  title,  1324,  1325 
Assisting — 

at  a  sale  and  recommending  title,  1100 
Association — 

of  persons  acting  under  color  of  authority,  effect  of,  1404,  1405 
Assumpsit  — 

judgment  for  plaintiff  in,  effect  of,  326 

in  action  of,  when  conclusive  against  fi'aud,  231 
will  bar  action  of  trover,  96 

on  insurance  policy,  96 

when  judgment  in  trespass  a  bar  to  action  of,  235 
Assurance— 

by  a  debtor  that  he  has  no  defense,  1117 
Assuring — 

party  that  he  has  given  bail,  an  estoppel  in  pais,  918 
Attachment — 

bonds,  parties  executing  can  not  deny  jurisdiction  of  court,  338 

essential  purposes  of,  359,  360 

proceedings  in  the  nature  of  proceedings  in  rem,  358,  363 
Attending— 

meetings  prevents  party  from  questioning  title  of  officers  elected,  1402, 
1403 

meetings  of  a  corporation  estops  party  from  denying  its  existence,  1402 
Attorney — 

advising  his  client  to  purchase,  estopped  from  setting  up  title,  1034 

appearance  by,  when  it  may  be  shown  to  be  fraudulent,  630 
of,  doctrine  in  relation  to,  681,  633 

effect  of  appearance  of  in  judgment  of  another  state,  630 

appearance  of   may  be   contradicted  when  judgment   used  in  another 
state,  635 
presumptions  in  regard  to,  680,  631 

deed  of  estops  him  and  all  persons  claiming  under  him,  816 


are  to  pages.]  InDEX.  1467 

Attorney  (continued). 

estoppel  of  inducing  his  client  to  purchase  property  at  a  void  sale,  830 

executing  bonds  in  violation  of  rules  of  court,  etc.,  1147 

inducing  purchase  of  a  mortgage,  1034 

married  woman,  when  bound  by  acts  of,  1250 

recitals  in  deed  of,  when  not  binding  on  principal,  755 

silence  of,  on  trial  when  conclusive,  951 

when  estopped  from  denying  truth  of  his  representations,  1034 

acts  of,  doctrine  in  regard  as  to,  940 
Attornment — 

to  receiver  creates  tenancy  by  estoppel,  969 
Auctioneer — 

estopped  to  question  party's  title  for  whom  he  sells,  1015 
Authentication— 

of  judgments  of  other  states,  effect  of,  635 

nature,  form  and  requisites  of,  661,  664 
Authority — 

of  agent  when  implied  from  circumstances,  1214 

a  judgment  on  a  record  containing  several  matters,  122 

sale  by,  when  owner  cannot  dispute,  1100 
Autrefois  acquit  and  convict — 

constitutional  provisions  applicable  to,  485 

maxims  applicable  to  doctrine  of,  486,  500,  502 
Autrefois  acquit — 

upon  an  indictment,  a  good  plea  in  bar,  485 

principles  upon  which  this  doctrine  is  founded,  486,  487 

question  of,  how  decided,  496 

for  burglary  and  larceny,  effect  of,  497 

of  offenses,  effect  of,  485,  497,  507 

how  it  must  be  taken  advantage  of,  498 

defense  of  must  be  specially  plead,  498 

plea  of  must  set  out  indictment,  499 

in  plea  of  must  show  court  had  jurisdiction,  499 

what  plea  insufhcient,  499 

plea  of,  parol  evidence  admissible  to  identify  offense,  500 
Arerments — 

and  allegations  admitted  in  pleadings,  conclusive,  943 
Avoiding'  judgments — 

in  collateral  actions,  311 
Award — 

as  conclusive  as  judgments  in  pleading,  1412,  1413 
to  boundary  line,  conclusive,  1272 

cannot  be  contradicted,  527 

effect  of,  527 

inducing  one  to  comply  with,  an  estoppel  in  pais,  918 

judgment  on,  215 


146^  Index.  [He/ereneea 

Award — continited. 

principles  applicable  to,  527,  532 

rule  ill  regard  to  making  it  available,  1412 

Avben  conclusive  as  to  rights  of  property,  1291 
Awarding:  money — 

to  claimants,  when  a  bar,  107 
Awards- 
governed  by  same  principles  as  judgments,  530,  538 

judgments  confirming,  when  conclusive,  41 
Axioms— 

of  the  law  applicable  to  estoppel  by  deed,  709 

B. 
Bailee— 

cannot  dispute  title  of  person  from  whom  he  receives  goods,  1013 
estopped  to  deny  bailor's  title,  937 

Bailment— 

or  lease  of  chattels,  when  it  creates  an  estoppel,  1014,  1015 

Bailor- 
judgment  against,  bars  an  action  by  the  bailee,  214,  215 

Bank- 
estopped  by  certification  of  checks,  1326-,  1330 

receiving  money  from  depositor,  to  deny  his  title,  1830 
liable  for  fraud  or  mistake  of  its  cashier,  1330 
ratification  of  cashier's  acts  an  estoppel,  1330 
when  bound  by  acts  of  cashier,   1327,   1328 

estopped  from  denying  its  corporate  existence,  1308 

Bankruptcj  — 

discharge  in,  must  be  pleaded,  276,  277 

Bankrupt!*  discharge- 
doc?  not  ufl'ect  passing  his  after- acquired  title,  806 
judgment  that  it  was  obtained  by  fraud,  conclusive,  282 
must  be  plead,  1415,  1416 

Banks- 
bound  by  ratification,  same  as  individual,  1330,  1831 

Bar- 
judgment  when,  to  a  subsequent  suit,  331 
requisites  to  make  a  judgmLUt,  94 

Basis- 

of  equitable  estoppels,  862 

estoppel  by  parol  designation  of  boundaries,  1270 
the  doctrine  of  estoppel  by  warranty,  805 
Res  judicata,  133 
that  an  after-acquired  title  inures  by  an  estoppel,  792 

Beneficiaries- 

standing  by  and  witcessing  the  expenditure  of  money,  1065, 1066 


are  to  pages.]  InDEX.  1469 

Benefits — 

arising  from  the  doctrine  of  estoppel  by  judgment,  8 

Bill- 
allegations  in,  when  conclusive,  934,  944 
dismissal  of,  when  conclusive,  477,  478 

without  prejudice,  effect  of,  471,  474 
in  equity,  doctrine  in  regard  to  dismissal  of,  470,  477 
of  lading,  estoppel  by  recitals  therein,  776 

application  of  estoppels  to,  1384,  1387 

Binding^  effect — 

of  a  judgment  where  record  contains  several  points,  122 

Bona  flde  dealing: — 

with  administrator  unimpeachable,  377 

Bona  fide  purchasers — 

when  equitable  estoppels  will  be  extended  in  favor  of,  923 

Bond- 
attachment,  conclusive  on  whom,  770,  771 
judgment  for  interest  on,  when  conclusive,  231 

on,  when  a  bar  to  an  action  of  tort,  257 
upon,  when  it  may  and  may  not  be  a  bar,  103,  104 
party  executing  estopped  to  deny  that  the  court  ordered  it  made,  769,  770 
recitals  in  estops  obligor  from  denying  it,  770 

Bondholder — 

estopped  by  judgment  against  the  trustee,  167 

when  estopped  from  denying  existence  of  corporation,  1401 

Bonds- 
execution  of  by  parties  estops  them  from  questioning  jurisdiction,  968 
estops  party  from  denying  official  character  of  principal,  769,  771 
estops  party  from  denying  that  it  is  double  the  amount  required,  767 
general  principles  of  conclusiveness  of,  771,  772 
guarantee  of,  estops  party,  1148 

issued  by  municipalities,  principles  applicable  to,  1331,  1381 
judgments  in  forthcoming,  estop  parties  from  controverting  them,  768 
of  indemnity,  application  of  estoppels  to,  1137,  1138 
parties  signing  us  principals  cannot  show  they  are  sureties,  770  • 
recital  in  conclusive,  767,  773 

of  particular  facts  in,  estops  party  from  denying  them,  767 
recitals  in  delivery  bonds  conclusive,  768 
sureties  on  appeal  and  other  bonds  estopped,  768,  769 

Bondsmen — 

doctrine  in  regard  to,  how  concluded  by  judgments,  169,  177 

Boundaries- 
acquiescence  by  party  in  seeing  expenditures  made,  1275 
in  a  division  line,  1273 

for  fifteen  years  conclusive,  1268 
act  of  legislature,  when  it  operates  as  an  estoppel,  1270 


1470  Index.  [lie/erencea 

Boundaries  (continued). 

agreement  as  to,  when  parties  estopped  from  denying,  1271 

application  of  estoppels  in  pais  to,  1275 

disputed,  that  have  been  fixed  and  settled,  when  conclusive,  1270 

distinction  in  the  cases  as  to,  1271,  1272 

erecting  improvements  in  reliance  on,  12G8,  1269 

estoppels  as  applied  to,  1266 

estoppel  to  dis))ute  when  settled  by  arbitration,  1272 

fixed  by  adjacent  proprietors,  what  necessary  to  make  conclusive,  1274 

government  of  U.  S.  estopped  by,  like  individuals,  1269 

grantor  when  estopped  from  disputing,  1269 

length  of  time  required  to  prevent  questioning,  1 266 

location  of  and  acquiescence,  when  an  estoppel,  1276 
by  state  legislature,  an  estoppel,  1266 
when  conclusive,  1266,  1268 

owner  pointing  out  to  settler,  when  estopped  from  denying,  1267* 

parol  adjustment  of,  when  conclusive,  1270 
designation  of,  cannot  be  recalled,  1270 

parties  estopped  from  questioning  by  plats  and  maps,  1276 

party  when  estopped  to  deny  true  line,  1270 

presumptions  in  favor  of  regularity  of,  1268 

recognition  of  by  a  party,  when  an  estoppel,  1275,  1276 

state  estopped  by,  as  well  as  individuals,  1275 

what  necessary  to  estop  parties  from  disputing,  1275 

when  party  estopped  from  claiming  different,  1275 

where  parties  agree  upon  a  line,  conclusive,  1273 
Boundary- 
acquiescence  in  by  parties,  when  conclusive,  1270,  1271 

declarations  as  to,  when  conclusive,  1267 
Boundary  Lines- 
principles  of  estoppel  applicable  to,  7o2,  754 

recitals  of  in  deed,  when  conclusive,  753 

statutory  proceedings,  when  conclusive,  395 
Bounds — 

within  which  equitable  estoppels  are  limited,  909 
Building  Contraots — 

estoppels  ,\vhen  applicable  to,  933,  936 
Burden  of  Proof — 

on  parties  relying  on  an  estoppel,  481 

whom,  in  cases  of  estoi)pel  in  pain,  1119 

pleading  judgments,  236,  237,  1484 

when  on  party  claiming  the  estoppel,  307 
Bnrgundus — 

classification  of  actions  by,  27,  29 
Buyer— 

of  a  chattel,  when  bound  by  an  estoppel  of  vendor,  922 


are  to  pages.]  IndEX.  1471 


C. 

California — 

conclusiveness  of  actions  in  ejectment  in,  225 
Can— 

a  defendant  in  a  criminal  trial,  waive  a  jury,  956,  960 
Carrier — 

estopped  from  denying  recitals  in  bill  of  lading,  776 
in  action  for  damages,  1390 

■when  lie  cannot  deny  authority  of  an  agent,  1222 
Cases- 
affecting  personal  status  bind  the  whole  world,  115 
illustrating  the  application  of  estoppels  to  states,  810,  814 

doctrine  of  election,  1159,  1164 
in  U.  S.  supreme  court  on  collateral  impeachment  of  judgments,  426,  446 
where  relief  is  granted  against  judgments  for  fraud,  453,  467 
showing  what  matters  might  have  been  litigated,  276,  277 
to  which  the  doctrine  of  res  judicata  applies,  319 
where  the  estoppel  of  warranty  does  not  apply,  818,  819 
Cashier — 

of  bank  power  to  bind  it,  as  managing  officer,  1327,  1329 
performing  official  duty,  estopped  from  denying  it,  1398 
Cause— 

jurisdiction  of,  what  it  is,  65 
Cause  of  Action — 

different  in  second  suit  makes  judgment  evidence,  106 
must  be  substantially  same  in  both,  110,  111 
same  in  two  suits,  former  judgment  a  bar,  106 
once  plead  or  offered  in  evidence  barred,  312 
when  merged  in  a  judgment,  124 
res  judicata^  98  . 

the  same,  91,  331 
Causes — 

for  which  judgments  may  be  impeached,  452,  530 
must  be  properly  prepared  and  presented  before  judgment,  128,  129 
of  action  must  be  sustained  by  the  same  facts,  111 
Certificate — 

by  mortgagor  that  he  has  no  defense,  1025,  1026 
of  acknowledgment,  proof  required  to  impeach,  733 
as  to  judicial  acts,  731,  732 
effect  of,  731,  755 
except  in  cases  of  fraud,  732 
doctrine  of  U.  S.  supreme  court,  as  to,  733,  735 
executed  by  married  womn,  731,  735 
what  necessary  to  impeacli,  732,  733 


1472  Index.  [BefereTicea 

Certificate  {continued). 

of  architect,  an  estoi^pcl,  933,  936 
deposit  recital  in,  conclusive,  773 
engineer,  when  conclusive,  934,  935 
no  defense,  w  hen  binding  on  married  women,  1237 
Certifloatioii — 

of  checks  by  banks,  conclusive,  1326,  1327 
effect  of,  1328,  1329 
Certified  Checks — 

doctrine  in  regard  to,  1325,  1321 
Cestui  que  trust — 

allowing  trustee  to  hold  himself  out  as  owner,  1225 
application  of  equitable  estoppels  to,  1225 
bound  by  a  de'cree  against  his  trustee,  187 
effect  of  acquiescence  on  part  of,  1225,  1226 
bound  by  confirming  an  invalid  sale,  1226 

concurrence  in  a  breach  of  trust,  1225 
Chancery — 

appointment  in  of  a  trustee,  conclusive,  523 
conclusiveness  of  proceedings  in,  467,  478 
decree  in,  admissible  to  show  rein  ipsam,  468 
concludes  parties  and  privies,  477 
couclusiva  as  to  what  matters,  478 
impeachment  of,  4G9 
conclusiveness  of,  467,  478 
inquirable  into  for  jurisdiction,  468 
in  personam  when  they  affect  real  estate,  468 
who  bound  by,  469 
of  dismissal,  effect  of,  473 
dismissal  of  bill  brought  by  tax-payers,  472 
in,  when  a  bar,  471 
without  prejudice,  efFecf;  of,  471,  474 
effect  of,  473,  474 
creditor's  bill  in,  472 
libel  for  divorce  in,  effect  of,  471 
injunction  in,  when  it  cannot  be  pleaded,  470 

perpetuation  of,  after  removal  of  case,  469 
parties  estopped  b}-  mutters  put  in  issue  and  settled,  477 
Avhen  decrees  in  will  not  operate  in  personam,  468 

opinion  will  be  used  to  aid  decree,  470 
will  not  review  a  decision  of  a  court  of  law,  470 
Changes — 

in  records  in  modern  times,  21 
Charterer — 

when  not  permitted  to  deny  performance  of  contract,  1153 


are  to  pages.]  InDEX.  1473 

Chattel- 
judgment  against  vendor  of,  effect  of,  373 
in  replevin  for,  when  no  bar,  373 
Chattel  Mortgage — 

recognition  of,  estops  denial  of  its  validity,  1230 
when  party  estopped  from  denying  validity  of,  1035 
Chattels- 
title  to,  judgment,  who  concluded  by,  203,  204 
Choosing  Arbitrators — 

effect  of,  529 
Circuity  of  Action- 
prevented  by  title  by  estoppel,  805,  806 
Circulars  and  Advertisements — 

when  binding  on  authors  of,  923,  924 
Circumstances— 

illustrating  estoppels  m  pais,  1091,  1095 
which  render  foreign  judgments  in  rem  conclusive,  583 
Citation — 

a  matter  of  natural  right,  54 
judgment  without,  absolutely  void,  54 
Cities — 

liable  for  torts  of  their  agents,  1369 
Citizens — 

of  other  states  receiving  dividends  under  assignment,  1186 
City- 
after  improving  a  street  cannot  deny  its  dedication,  1367 

levying  a  special  tax  to  pay  a  contract  cannot  question  it,  1367 
allowing  large  expenditures  without  objection,  bound,  1365 
bound  by  acts  of  oflBcers,  when,  1308 

same  as  individuals,  by  unauthorized  acts,  1369 
cannot  plead  its  own  illegality  in  actions,  1866 
councils,  acts  of,  when  binding  on  property-owners,  1362 
concluded  by  working  roads  already  laid  out,  1370 
estopped  by  treating  a  place  as  a  street,  1366,  1367 
where  they  have  licensed  a  party,  1365 
by  taking  unlawful  possession  of  land  for  street,  1370 
issuing  a  license  cannot  sue  party  for  violating  the  law,  1366 
liable  when  assuming  control  of  streets,  1369 
suing  for  injury  cannot  set  up  want  of  authority,  1366 
when  bound  by  actions  of  its  officers,  1365,  1366 

admission  of  its  officers,  1368,  1369 
compelled  to  refund  money  on  revoking  licenses,  1366 
it  cannot  deny  legal  existence  of  a  street,  1369,  1370 

set  up  want  of  authority,  1368 
not  bound  by  subsequent  ratification,  1368 
93 


1474  Index.  [References 

Ciyil  Conrts — 

no  ecclesiastical  jurisdiction,  532,  534 
Civil  Law — 

doctriuc  as  to  election  of  remedies,  1179,  1180 
estoppels  on  infants,  1252,  1253 
of  election,  11  GO 

in  reganl  to  the  plea  of  res  judicata,  77,  96 
rule  of  equitable  estoppels  to  judgments,  342,  343 
doctrine  of  res  judicata,  85 
Claim — 

judgment  for,  conclusive  in  mandamus,  138 

allowed  in  probate  court,  merged,  393,  394 

arising  from  contracts  or  wrongs  cannot  be  divided,  251 

of  no  defense  by  mortgagor,  effect  of,  1024,  1025 

title  which  cannot  be  set  up  by  a  privy  in  estate,  993 
or  title,  when  a  party  cannot  set  up,  739 
Claiming  — 

property  to  be  free  prevents  party  setting  up  lien,  904,  905 
Claimants — 

of  a  fund,  when  not  barred,  115 
Class— 

of  admissions  which  are  conclusive  against  parties,  863 
Classificatiou — 
of  actions,  27 

by  Bracton,  27,  29 
Burgundus,  37 
Gaius,  29,  31 
Justinian,  32,  35 
cases  -where  an  estate  passed  in  the  civil  law,  779,  780 
judgments  as  to  their  conclusiveness,  37 
Clerical  Errors- 
do  not  affect  estoppel  of  judgment,  313 
in  judgments  of  courts  with  jurisdiction,  317,  318 
Code  System — 

plea  of  res  judicata  under,  317,  319 
Codes- 
judgments,  how  made  avaibible,  when  they  are  a  defense,  1425 
Coke's  decision — 

why  judgments  conclusive  on  juries,  1412 

description  of  a  release  with  a  warranty,  and  effect  of,  808,  809 
Collateral- 
actions  in,  no  estoppel  b}'  deed,  713 
attack  of  judgment  for  want  of  jurisdiction,  317,  318 
impeachment  of  judgments,  doctrine  of  U.  S.  supreme  court,  426,  446 
questions  not  concluded  by  a  judgment,  142 
matters  not  included  in  probate  decrees,  378 


are  to  pages.]  IndEX.  1475 

Collateral  {continued). 

not  included  in  merger  of  a  judgment,  477 
proceeedings  in  what,  judgments  may  be  assailed,  311 
and  incidental  questions  are  not  concluded,  324 
and  principal  elements  in  plea  of  res  judicata,  65 
Collector — 

of  taxes  cannot  deny  right  of  county  thereto,  1016 
Comity — 

doctrine  of,  applicable  to  foreign  judgments,  591 
Commissioner — 

actions  of,  when  conclusive,  523 
of  internal  revenue,  decisions  of,  conclusive,  525 
of  counties,  adjudications  of  cannot  be  collaterally  attacked,  520 
allowance  of  claims  by,  a  merger,  519 
conclusiveness  of  actions  in  opening  roads,  etc.,  523 
doctrine  applicable  to,  523,  525 
principles  applicable  to  their  actions,  517,  524 
presumptions  in  favor  of  findings  of,  520 
proceedings  of,  conclusive  on  successors,  521,  522 
when  conclusive,  517,  524 
of  patents,  decisions  of,  conclusive,  523 
pensions,  decisions  of,  conclusive,  526 
under  legislative  acts,  decisions  of,  conclusive,  523,  526 
Common  law — 

doctrine  that  no  one  shall  be  punished  twice,  &c.,  486 
incapacity  of  women,  effect  of,  on  estoppel,  1239 
rule  applicable  to  judgments  applies  to  decrees,  468 
rules  as  to  awards,  529 
and  statutory  dedications,  1278 
Compromise — 

judgment  binds  parties,  341,  342 
of  claim,  when  an  estoppel,  1197 
Comptroller — 

of  the  cun-ency,  certificate  of,  conclusive,  525 
Concealment — 

of  lieu  by  party,  prevents  setting  it  up,  1199,   1200 
mortgage,  when  it  postpones  it,  1042 
secret  titles  by  infants,  1256 
title  by  party,  when  an  estoppel,  1052 

Conclnsive — 

effect  of  a  judgment,  133 

cannot  be  questioned,  323 

on  demurrer,  321,  323 

whether  after  trial  or  on  technicality,  128 

illustrated,  309,  311 

of  courts  of  exclusive  jurisdiction,  143 


1476  Index.  IBe/ercncea 

Couclusire  (continued). 

effect  of  personal  judgmcuts,  on  what  dependent,  105 
plea  of  tender,  964,  965 
probate  proceedings,  375 
promise  by  an  obligor,  1112 
evidence  of  judgments,  where  title  is  in  issue,  222,  224 
and  yet  no  bar,  1 03,  106 
by  default  and  confession,  41 
reasons  why  judgments  i7i  rem  are,  351 
when  foreign  judgment  is,  589,  590 
Concliisiveuess — 

of  admissions,  861 

an  election  when  once  made,  1162 

awards,  527,  532 

decrees  of  forfeiture,  etc.,  351 

dedication  when  once  made,  1283 

entries  and  orders  made  in  a  cause,  306 

findings  of  courts  in  sales  of  real  estate,  379 

foreign  judgments  as  to  every  fact  except  jurisdiction,  608,  610,  674 

grant  of  letters  of  guardianship,  378 

judgment  aflBrmed  by  a  divided  court.  121,  125 

when  used  in  mandamus  proceedings,  138,  139 
as  to  matters  in  the  record,  122 
dismissing  a  bill,  233 
in  ejectment,  220,  231 
«?i  rem,  344,  396 

where  numerous  questions  involved,  233 
requiring  parol  evidence  to  identify  issues,  238 
not  affected  by  fraud,  298 
on  specific  issues,  232 
rendered  on  one  of  several  notes,  232 
whether  of  law  or  fact,  232 
assimilates  them  to  estoppels,  9 
between  same  parties  on  same  points,  299 
doctrine  in  regard  to,  552 
in  attachment,  garnishment,  352,  372 
ejectment  in  California,  225 

action  for  mesne  profits,  220,  228 

Iowa,  220,  221 

Kentucky,  220,  221 

Minnesota,  220,  221 

Missouri,  227 

New  Jersey,  220,  221 

Ohio,  220,  221 

Pennsylvania,  220,  221 

South  Carolina,  220,  221 


are  to  pages.]  InDEX.  1477 

Conclnsiveness  (continued). 

of  judgments  in  ejectment  in  Tennessee,  220,  221 
replevin,  203,  294 

one  of  two  courts  of  concurrent  power,  465 
of  dismissal,  295,  296 

inferior  and  military  courts,  510 
ecclesiastical  courts,  532,  534 
other  states,  601,  703 

as  to  all  matters,  675 
where  jurisdiction  is  shown,  600,  674 
on  questions  of  law,  280 

parties,  reasons  for,  277,  278 
or  sentences  in  rem,  356,  357 
ordering  sale  of  a  foreign  vessel,  351 
whether  pleaded  or  offered  in  evidence,  1413 
and  decrees  in  partition,  303,  307 
officer's  return,  539,  546 
probate  of  a  will,  377 
proceedings  in  inferior  courts,  107 
of  societies,  &c.,  534     ^ 
where  inferior  courts  have  jurisdiction,  379 
recitals,  exceptions  to  rule  of,  759,  760 
of  jurisdictional  facts,  418 
facts,  743,  744,  752 
records,  22 

as  to  material  allegations,  141 
in  justices'  courts,  403,  404 
of  courts  of  competent  jurisdiction,  315,  316 
rule  of  the  same,  no  matter  what  question  determined,  100 
of  sentences  of  visitors,  trustees,  etc.,  510 
Condemnation — 

foreign  decrees  of,  effect  of,  573,  587 
of  land,  who  cannot  question,  1388 
sentences  extinguish  title,  577 
Condition — 

in  insurance  policy,  when  it  may  be  waived  by  agent,  1332,  1334 
Conditional  Judgment— 

in  foreclosure  suit,  no  bar,  256 
Conditions — 

in  deeds,  which  bind  vendor,  1011 

etc.,  that  are  not  conclusive,  744 
requisite  to  the  plea  of  res  judicata,  85 

under  which  the  plea  of  res  judicata  becomes  applicable,  102 
Conduct- 
by  negligence  or  omission  when  it  creates  an  estoppel,  880,  881 
estoppel  by,  effect  of  intent  of  party,  889,  890 


1478  Index.  {Reference» 

Conduct  {continued). 

illustration  of  estoppels  by,  890,  891 
rule  in  regard  to  estoppel  by,  882 
that  creates  an  equitable  estoppel,  880 
of  vendor  which  postpones  his  lien,  966,  967 
Conducting — 

one's  self  so  as  to  appear  as  a  partner,  1227 
Conferring — 

an  apparent  title  on  another,  effect  as  against  owner,  893 
Confession  — 

in  pleading,  when  conclusive,  944 

judgment  by,  effect  of  in  other  states,  678,  679 

when  a  bar,  41 
of  judgment  bars  writ  of  error,  47 

by  administrator,  effect  of,  48 
in  ejectment,  conclusive,  228,  229 
may  be  validated  by  ratification,  48 
when  invalid,  48 
Conflrniation — 

of  report,  conclusive  effect  of,  305 

sales,  effect  of  ratification  and  acquiescence,  1189,  1190 
fraudulent  deed  estops  party  from  disputing  it,  1188 
Confiscation  Cases — 
judgments  in,  212 
Consent — 

judgment  waives  prior  errors,  49 
which  cures  errors  in  proceedings,  963 
Consenting — 

to  a  reference  as  a  bar,  945 

assessment  for  special  improvements,  effect  of,  1361,  1362 
judgment,  binds  party,  341 
Consideration — 

in  a  deed,  effect  of  recital  of,  761,  763 

of  foreign  judgments,  and  judgments  of  other  states,  571,  703 
recital  of,  may,  and  may  not,  be  conclusive,  762,  763 
limiting  the  conclusive  effect  of  judgments,  24 
Constable — 

return  of,  effect  of,  965 
Constitutional  law — 

questions  of  may  be  decided  in  private  litigation,  113,  114 
provisions  as  to  judgments  of  other  states,  599,  600 

twice  in  jeopardy,  485 
constitutional  rights,  waiver  of,  955,  963,  996 
Construction — 

of  an  instrument  once  determined  binding,  232,  233 
a  statute  should  be  followed,  123 


are  to  pages.]  IndEX.  1479 

Constructive  fraud — 

of  party  with  unrecorded  title,  ]089 
Constructive  service — 

doctrine  of  U.  S.  supreme  court,  on  judgments  by,  621,  627 
Contempt — 

conclusiveness  of  judgment  in,  568,  570 

doctrine  of  res  judicata,  when  it  applies,  568,  570 

judgment  in,  568 

when  valid,  53 

rules  and  principles  applicable  to  judgments  in,  568 
Contract — 

action  for  breach  of,  when  a  bar  to  an  action  of  tort,  239 

cannot  be  treated  as  void  and  valid,  1163,  1164 
varied  by  parol  proof,  708 

conclusive  effect  may  be  vitiated  by  fraud,  710 

damages  for  breach  of,  when  a  bar,  288 

entered  into  without  fraud  binding,  708 

for  sale  of  land,  judgment  on,  in  action  of  ejectment,  220 

of  married  women,  that  are  binding,  1230,  1260 

of  municipal  corjiorations,  when  conclusive,  1367,  1868 

judgment  for  one  breach  no  bar  for  another,  300 
on,  of  what  conclusive,  283 
when  a  bar,  249 
bars  another  action  for  a  part,  311 

in  writing,  application  of  estoppels  to,  707,  858 

etc.,  made  on  Sunday,  1155 

operation  of,  ascertained  from  its  language,  709 

several,  when  not  included  in  judgment,  135 

verbal,  of  insurance,  when  binding  on  company,  1332,  1833 

when  merged  in  a  judgment,  198 

oral  evidence,  when  inadmissible  to  vary,  708 

which  are  binding  on  the  U.  S.  government,  1263,  1264 
turned  into  notes  binding,  1128,  1129 
Convenient  test — 

for  ascertaining  whether  second  action  is  the  same,  96 
Conveyance — 

estoppels  in  pais  do  not  operate  as  an,  1077 

by  record  or  deed  indented  conclusive,  817 

application  of  estoppel  to,  707,  858 

binding  on  states,  1264 

of  land,  when  it  passes  after-acquired  title,  777,  778 

to  corporation  estops  grantor  denying  its  existence,  1401 
power  to  take  title,  1401 
Conviction — 

of  crime,  when  a  good  plea  in  bar,  486,  507 


1480  Index.  [lieferences 

Coram  non  jn<lice — 

effect  of  jmlgments  that  are,  551 
records  that  are,  24 
when  proceedings  are,  54 
Corporate — 

officers  estopped  from  taking  advantage  of  errors,  1303 
Corporation  — 

exceeding  its  powers  in  issuing  bonds,  efTcct  of,  1319 
after  issuing  bonds  cannot  set  up  illegality,  1307 
bound  by  act  not  vU7'a  Tires,  1313 

acts  of  president  in  issuing  notes,  1308,  1309 

deed  under  seal,  1312 

illegal  increase  of  its  capital  stock,  1313 

officers  standing  by  and  seeing  expenditures  made,  1304 

ratification,  same  as  natural  person,  1310 

technical  and  equitable  estoppels,  1303 
cannot  affirm  and  disaffirm  acts  of  its  agent,  1310 

legally  exercise  power  not  conferred  on  it,  1320 
relieve  itself  from  responsibilitj'^  by  merger,  1321 
contract  of,  if  valid  under  any  circumstances,  binding,  1319 

when  fully  executed  by,  cannot  plead  ultra  vires,  1314, 1315 
declaring  a  dividend  cannot  deny  it  has  been  earned,  1321,  1322 
deed  of,  when  it  passes  an  after-acquired  title,  793 
enjoying  benefit  of  a  contract  cannot  plead  ulti'a  vires,  1319 
estopped  by  act  of  cashier  in  certifjang  check.  1305 

registering  a  person  as  shareholder,  1326 
recitals  in  its  certiftcates  of  stock,  1325 
registering  forged  transfers  of  stock,  1325,  1326 

from  denying  that  its  officers  were  duly  elected,  1308 
impeaching  bonds,  by  delivering  them,  1211 

to  deny  validity  of  bonds  owned  by  lonafide  purchaser,  1305 
estoppel  of  by  ratification,  1367 

exercising  power  not  legally  conferred  to  set  up  ultra  vires,  1320,  1322 
franchise  of,  when  it  cannot  be  impaired  by  government,  1309 
holding  out  a  party  as  officer  or  agent,  1302 
issuing  stock  cannot  deny  holder's  title,  1305 
judgment  against  binds  stockholders,  164 
liable  for  fraudulent  acts  of  its  agent,  1302 
may  become  bound  without  corporate  seal,  1367 
no  implied  power  to  change  its  capital  stock,  1313 
powers  of,  how  ascertained,  1312,  1313 
presumptions  in  favor  of  validity  of  acts  of,  1313 
ratification  of  acts  by  a  committee  of,  1310 
relying  on  a  deed  cannot  deny  its  validity,  1309 
to  bind  agent  must  act  \vithin  scope  of  authority,  1300 
when  bound  by  contract  from  denying  its  existence,  1308 


are  to  pages,]  IndEX.  1481 

Corporation  {continued). 

when  estopped  from  denying  want  of  power,  1318 

claiming  illegal  exercise  of  power,  13B4 
setting  up  invalidity  of  contract,  1309 
plea  of  ultra  vireSy  1315 
who  can  question  want  of  power  of,  1319 
bound  in  the  same  manner  as  individuals,  1303 
hable  on  their  contracts  same  as  natural  persons,  13G7 
bound  by  acts  of  agents,  &c.,  same  as  natural  persons,  1299 
the  acts  or  negligence  of  agents,  1299 
knowledge  of  managing  officers,  1299 
matters  ultra  vires,  1312 
act  by  officers,  and  bound  by  waiver,  1831 
cannot  deny  validity  of  stocks  issued,  1325,  1326 
cases  illustrating  application  of  estoppels  in  pais  to,  1303,  1368 
charter  of,  cannot  be  collaterally  attacked,  1391 
doctrine  of  the  supreme  court  of  U.  S.  as  to  ultra  vires,  1316,  1317 

ultra  vires,  when  and  when  not  available,  1313 
English  doctrine  in  regard  to  ultra  vires,  1315,  1321 
bound  by  claiming  i)roperty  obtained  by  agents,  1311 

contract  unathorized  by  receiving  benefits  from  it,  1308 
false  representation  of  officers,  1301 
issuing  certificates  for  paid-up  stock,  1304 
estoppels  as  applicable  to,  1299,  1409 
imposing  assessments  on  members,  effect  of,  1321 
judgments  against,  conclusive  in  another  action,  232 
may  waive  their  rights  like  natural  persons,  1323 
must  act  by  their  agents  and  officers,  1299 
presumptions  in  favor  of  validity  of  acts  of,  1317 
responsible  in  damages  for  torts  of  agents,  1302 
to  be  bound,  agents  must  be  acting  by  authority,  1301 
when  they  cannot  repudiate  contracts,  1322 
when  cannot  plead  ultra  vires  as  to  debentures,  1317,  1318 
Correctness — 

of  a  judgment  cannot  be  impeached,  1419,  1420 

judgment  cannot  be  disputed  by  parties  or  privies,  219 
Co-tenant — 

purchase  by,  when  it  inures  to  the  benefit  of  all,  1000,  1001 
when  after-acquired  title  will  inure  to,  797 
Co-trespasser— 

English  doctrine  as  to  judgment  against,  193,  194 
judgment  against,  193,  194 
Counter-claim — 

not  barred  by  judgment  by  default,  41 

passed  upon  is  barred,  279 

or  demand  withdrawn,  is  not  barred,  309 


1482  Index.  lEe/erenoes 

Connter-claim  (continued). 

when  and  where  it  may  not  be  basis  of  separate  action,  309,  312 
it  does  not  become  res  judicata,  280 
not  included  in  res  judicata,  135 
Counties— 

cannot  attack  judgments  in  mandamus  proceedings,  138,  139 
County  board  — 

grant  of  ferry  license,  conclusive,  523,  524 
County  bonds — 

doctrine  applicable  to,  1370,  1383 
County  courts — 

allowance  of  claim,  when  conclusive,  517,  524 

approval  of  bond,  when  conclusive,  517,  525 

conclusiveness  of  proceedings  of,  517,  524 

general  principles  of  conclusiveness  of,  517,  524 

proceedings  not  subject  to  collateral  attack,  517,  524 
County — 

■when  estopped  to  question  title  of  tax-payer,  1016  • 

Court — 

inferior,  when  presumed  to  have  jurisdiction,  401 

first  rendering  judgment  merges  cause  of  action,  465 

of  concuiTent  power,  judgment  in,  when  conclusive,  465 
equity  will  not  afford  relief  against  judgments,  465,  466 

enjoin  party  from  pleading  unconscientious  defense,  1449 

must  be  legally  constituted  to  render  valid  judgment,  65 
determine  whether  party  has  been  duly  served,  66 

of  competent  jurisdiction,  effect  of  judgment,  112 

proceedings,  effect  of  when  in  excess  of  authority,  404 

pronouncing  judgment  without  giving  party  hearing,  effect  of,  109 

what  must  be  determined  before  it  has  jurisdiction,  66 

will  determine  whether  an  admission  is  a  bar,  939 

without  jurisdiction  its  decision  a  nullity,  69 

and  jury  bound  by  an  estoppel,  1411 
Courts — 

after  term  no  power  to  modify  judgments,  50 

all,  may  vacate  judgments  during  term,  50 

bound  b}'^  a  former  decision  of  the  same  case,  117 

cannot  provide  against  future  controversy  by  same  parties,  330 

errors  by,  do  not  affect  judgments,  424,  425 

first  appealed  to,  grants  relief  which  is  conclusive,  465 

having  jurisdiction  of  decedent's  estate  proceed  in  rem,  374 

in  whose  favor  jurisdiction  will  be  presumed,  409,  410 

inclined  to  extend  doctrine  of  equitable  estoppels,  898 

inferior  and  superior  distinguished,  899 

law  and  equity,  apply  estoppels,  10 

need  not  be  same  to  make  prior  judgment  available,  108 


are  to  pages.'\  IndEX.  1483 

Courts  (continued). 

admiralty  and  prize  must  have  jurisdiction,  574,  576 
of  bankruptcy,  have  exclusive  jurisdiction,  285,  286 
competent  jurisdiction,  presumptions  in  favor  of,  100 
equity,  when  will  disregard  the  principles  of  estoppel,  10 
law  enforce  estoppels  affecting  title  to  land,  1054,  1055 

equitable  estoppels,  1443 
limited  jurisdiction,  like  particular  agents,  407 

must  set  forth  facts  showing  it,  401 
what  record  must  show,  401 
when  proceedings  void,  401 
ordinary,  proceedings  of  in  rem,  348 
record,  judgments  of  within  their  jurisdiction  binding,  109 

and  not  of  record,  defined,  399 
special  and  summary  powers,  judgments,  conclusiveness,  420 
U.  S.  limited  jurisdiction  of,  143,  399 
presumptions  in  favor  of  regularity  of  proceedings,  446,  447 
that  may  determine  their  jurisdiction,  409,  410 
when  bound  to  apply  doctrine  of  estoppels,  1441 
cannot  prevent  construction  of  railroads,  1389 
they  will  extend  the  application  of  estoppels  to  strangers,  923 
of  limited  but  not  inferior  jurisdiction,  399,  402 
must  show  jurisdiction  in  records,  409,  410 
whose  jurisdiction  is  specially  confen-ed,  nature  of,  404 
must  be  shown,  inferior,  410 
proceedings  are  in  nature  of  proceedings  in  rem,  374 
Courts-martial — 

doctrine  in  regard  to  establishment  of,  510,  511 
of  U.  S.  supreme  court,  as  to,  510,  516 
jurisdiction  of,  510 

military  courts,  principles  applicable  to,  510,  516 
proceedings  of,  in  rem,  348 

when  conclusive,  510,  511 
sentence  of  not  subject  to  collateral  attack,  510 
Corenant — 

effect  of  will  be  limited  in  extent,  807 

estops  grantor  and  privies  from  future  claim  of  title,  815 

express  in  lease,  effect  of,  838 

expressed  by  way  of  recital  conclusive,  773 

for  quiet  enjoyment,  effect  of,  809 

must  run  with  the  laud  so  as  to  pass  after-acquired  title,  808 

nature  of,  passing  after-acquired  estate,  807,  808 

of  warranty,  binds  grantor's  heirs,  814 

by  grantor  owning  portion  of  tract  of  land,  807 
cannot  be  controverted  by  grantor,  814 
doctrine  as  to  limitation  of,  823 


1484  Index.  [References 

Covenant  {continued). 

of  warranty,  doctrine  after-acquired  interest,  850 
effect,  how  limited,  821,  822 

precludes  grantor  from  setting  up  after-acquired  title,  824, 
prevents  ejectment  on  after-acquired  title,  814,  815 
in  deed,  similar  effect  as  recitals,  814 
vests  after-acquired  title  instantly  in  grantee,  805,  806 
in  a  quit-claim  deed,  effect  of,  821,  822 
a  perpetually  operating  one,  814 
may  be  restricted  by  its  terms,  825 
what  necessary  to  bar  party  by,  807 
when  it  passes  vested  but  not  contingent  interest,  817 
operates  by  way  of  rebutter,  816 
qualified  by  recital  in  deed,  821 
words  "grant,"  "  bargain,"  and  "  sale,"  amount  to,  815 
that  have  effect  of,  in  passing  estates,  815,  816 
running  with  land,  effect  of  occupation  thereof,  850,  851 
when,  as  conclusive  as  positive  recitals,  759 
Covenantors — 

notice  to  defend,  effect  of,  162,  163 
Covenants — 

effect  of,  723,  724 

in  a  deed  by  married  women,  when  binding,  1243 
that  bind  after-acquired  interests  in  land,  782 
to  indemnify  against  actions,  163 
Coverture — 

cannot  be  used  as  a  cloak  for  fraud,  1238 
or  infancy,  no  excuse  for  fraud,  1255 
when  no  bar  to  application  of  equitable  estoppels,  1237 
Creation — 

of  estoppels  by  warranty,  803,  805 
Creditor — 

inducing  others  to  accept  compromise,  cannot  recover  tuU  amount,  1152 
treating  an  instrument  as  sufficient  to  obtain  attachment,  1187 
receiving  proceeds  from  agent  or  attorney  bound,  1191 
inducing  another  to  levy  cannot  set  up  a  prior  claim,  1169 
receiving  dividend  under  assignment,  cannot  contest  it,  1185 
when  bound  by  estoppel  that  affects  his  debtor,  922 
confirming  fraudulent  deed  cannot  impeach  it,  1152 
levying  on  equity  of  redemption  cannot  impeach  mortgage,  1152 
Creditors — 

bill,  effect  of,  472 

claiming  under  assignment  by  corporation,  bound,  1359 
when  bound  by  same  estoppel  as  firm,  1281 
Criminal  Proceedings — 

doctrine  of  res  judicata  applicable  to,  485,  507 


are  to  pages.]  IndEX.  1485 

Criterion — 

of  res  judicata  is,  will  same  evidence  maintain  both  actions,  96 
a  judgment  as  an  estoppel,  112 
Culpable  Negligence — 

of  a  party  an  estoppel,  899,  900 
when  an  estoppel  in  pais,  6 

D. 

Damages- 
acceptance  of,  as  a  dedication,  1287,  1288 

bars  action  for  any  residue,  1198 
doctrine  in  regard  to  judgments  for,  289 
for  breach  of  contract,  when  a  bar,  288 
judgment  for  in  case  of  nuisance,  effect  of,  288,  289 

when  paid,  effect  of,  288 
when  judgment  for,  not  final,  289 

recovery  of  bars  further  action,  288 
where  plaintiff  can  recover  prospective  or  general,  288 
Date— 

of  a  deed,  when  it  becomes  a  recital,  and  conclusive,  758 
maj'^  be  contradicted,  758 
judgment  no  effect,  126 
Dealings — 

with  administrator,  conclusive  effect  of,  377 

corporation  as  existing,  estops  party  from  denying  it,  1405 
Death— 

letters  of  administration  are  conclusive  evidence  of,  378 
Debtor — 

estopped  by  consenting  that  judgment  may  continue  a  lien,  1184 
when  estopped  by  concealing  a  defense,  1118 

from  pleading  want  of  consideration,  1120 
taking  advantage  of  defenses,  1114 
Deception — 

and  change  of  conduct  necessary  to  estop  party  showing  truth,  906,  907 
Decision — 

by  court  as  to  jurisdictional  facts,  06 
enjoining  a  treasury  warrant,  effect  of,  306 
of  an  application,  when  conclusive,  139 

commissioner  of  internal  revenue,  when  conclusive,  525 

pensions,  when  conclusive,  526 
comptroller  of  the  currency,  conclusive,  525 
a  court  of  probate,  a  bar,  107 

general  jurisdiction,  why  binding,  67 
last  resort,  effect  of,  118 

that  it  has  jurisdiction,  may  be  impeached,  66 
inferior  courts,  a  bar,  107 


1486  Index.  [lie/erences 

Decision  (conlimied). 

of  land  commissioner  and  award  of  patent,  when  conclusive,  525 
probate  court  not  open  to  examination  in  any  other,  423 
secretary  of  treasury,  when  conclusive,  525 
on  agreed  case,  when  final,  566 

question  of  jurisdiction,  when  final,  409,  410 
that  bankrupt's  discharge  is  fraudulent,  conclusive,  232 
Decisions— 

as  to  marshaling  liens,  when  conclusive  in  probate  court,  534 

in  rem^  reasons  for  conclusiveness  of,  396 

made  by  highest  tribunals,  final,  99,  100 

of  clubs  and  charitable  societies,  conclusive,  534 

county  commissioners,  supervisors,  etc.,  bind  subsequent  boards,  521 

conclusiveness  of,  520,  523 
doctrines  applicable  to,517,525 
not  attacked  collaterally,  520 
heads  of  departments,  when  conclusive,  526 
inferior  courts  cannot  be  collaterally  impeached,  403,  404 
land-officers,  when  conclusive,  525 
state  court  that  are  binding  on  fedei-al  court,  687,  688 
United  States  supreme  court  that  are  binding  on  state  court,  687,  691 
various  inferior  courts  that  are  conclusive,  507 
that  are  conclusive,  109 

become  authoritative,  116 
when  final,  42 
Declaration — 

estoppel  of,  when  it  will  be  extended  so  as  to  affect  third  persons,  922 
made  by  one  man  with  intent  to  influence  another,  921 
Declarations- 
how  ascertained  to  create  equitable  estoppels,  1443 
in  the  presence  of  strangers,  when  an  estoppel  as  to  them,  921 
made  and  acted  on  operate  by  way  of  estoppel,  916 
of  owner  executing  a  deed  in  blank  as  an  estoppel,  1089 
parties  to  a  public  act,  conclusiveness  of,  729 
which  waive  forfeiture  of  policy,  1346 
Declaring — 

note  good,  estops  maker,  1121,  1122 
Decree — 

as  a  plea  a  bar,  as  evidence  conclusive,  469,  470 
admissible  to  show  rem  ijjsnin,  408 

allowing  a  claim  against  an  estate,  conclusiveness  of,  393 
common  law  rule  as  to  judgments  applicable  to,  468 
conclusive  of  matters  which  might  have  been  litigated,  478 
construing  a  will,  binds  after-born  children,  335 
does  not  conclude  the  rights  of  third  parties,  113 
for  alimony,  when  conclusive,  475 


are  to  pages.]  IndEX.  1487 

Decree  (continued). 

for  sale  of  real  estate,  a  proceeding  in  rem,  347 

by  probate  court  not  impeached  collaterally,  380 
granting  husband  administration  of  wife's  estate,  conclusive,  380 
in  admiralty  is  in  rem  binds  the  whole  world,  351 

chancery  when  conclusive,  no  necessity  for  pleading,  1412 

the  same  eflfect,  as  judgment,  467,  438 
partition  cannot  be  collaterally  inquired  into,  305 
jurisdiction  of,  inquirable  into,  408 

may  affect  property  not  within  jurisdiction  of  court,  468 
not  impeachable  for  fraud  while  in  force,  408 
of  a  competent  court,  conclusive  upon  rights  of  parties,  468 
county  court,  a  bar,  107 
court  awarding  money  to  claimants,  a  bar,  107 
discharge  of  bankrupt,  effect  of,  284 
foreclosure,  conclusiveness  of,  1021 
settlement  of  guardian's  account,  conclusive,  380 
on  a  bill,  conclusive  evidence  of  same  facts  at  law,  468 
parties  estopped  by  matters  put  in  issue  in  the  bill,  477 
rules  of  conclusiveness  of,  477,  478 
when  it  may  be  avoided  for  fraud,  460 

will  not  operate  in  2}ersonam,  468 
not  liable  to  collateral  impeachment,  73 
Decrees — 

as  res  judicata,  468,  470 
bind  only  parties  and  privies,  469,  477 
conclusive  against  creditors,  312 
dismissing  a  trustee,  conclusive,  394 
final,  when  no  apjjcal  is  given,  408 
foreign,  must  be  rendered  with  jurisdiction,  580 
see  Foreign  Judgments. 

what  required  to  make  them  conclusive,  579,  680 
granting  letters  conclusive  in  other  states,  385,  386 
in  admiralty,  foreign,  effect  of,  571,  587 
irregularities  in  granting  do  not  avoid,  387 

of  condemnation  or  acquittal  by  court  of  admiralty,,  conclusive,  574 
courts  as  to  property,  etc.,  conclusive  against  the  world,  375,  395 
of  ecclesiastical  jurisdiction,  conclusiveness  of,  377 
equity,  a  bar,  107 

peculiar  and  exclusive  jurisdiction,  conclusive,  534 

probate  not  subject  to  collateral  impeachment,  376 

foreign  admiralty  courts,  when  enforceable  by  other  nations,  574,  578 

examinable,  574 
granting  administration,  conclusiveness  of,  378 
one  nation  to  be  respected  by  another,  579 
probate  courts  can  be  impeached  only  for  want  of  jurisdiction,  381 


1488  -  Index.  Eeference* 

Decrees  {continued). 

of  probate  courts  can  only  be  reversed  on  appeal,  376,  380 
cannot  be  collaterally  assailed,  394 
conclusive  initil  reversed  or  set  aside,  886 
examinable  for  jurisdiction,  403,  404 
impeacliJible  only  in  equity  for  fraud,  393 
of  the  nature  of  proceedings  in  rem,  394 
with  jurisdiction  conclusive,  391 
spiritual  courts,  387,  389 
on  facts  necessary  to  give  jurisdiction,  final,  408 

final  settlement  conclusive,  391,  392 
perpetuating  injunctions  of  state  court,  4G9,  470 
principles  applicable  to  foreign,  580,  587 
purchasers,  when  protected  by,  408,  409 
settling  an  account,  conclusive,  380 
statutory  provisions  for  setting  aside,  390 
transferring  or  creating  change  of  title  conclusive,  391 
United  States  bound  by,  382 
void  and  voidable,  50,  51 
want  of  jurisdiction  the  only  question,  381 
when  a  court  will  be  governed  by  an  accompanying  opinion,  470 

new  parties  not  bound  by,  409 
W'here  courts  have  jurisdiction  final,  no  matter  how  erroneous,  408,  409 
which  must  and  must  not  show  jurisdiction  on  their  face,  409,  410 
Dedication— 

acceptance  of  by  the  public,  concludes  the  party,  1282 
after  parties  have  built  on  the  faith  of,  cannot  be  revoked,  1282 
by  acts  in  pais  estops  party  from  questioning  it,  1283 
equitable  owner,  effect  of,  1280 
holder  of  equitable  title,  when  an  estoppel,  1281 
laying  off  streets,  alleys,  etc.,  on  maji,  1284 
selling  lots  fronting  on  streets,  1284 
definition  of,  1278 
effect  of  acceptance  as  a,  1285 

estoppel  by,  does  not  depend  upon  length  of  user,  1283 
estops  original  owner  from  questioning  it,  1282,  1283 
how  it  maj'  be  established,  1279 
intention  of  owner  necessary  to  create,  1283,  1288 

or  acquiscence  of  owner  creates,  1285 
instances  of,  1279 

is  in  the  nature  of  estoppel  in  jmis,  1278 
is  'purely  a  question  of  intention,  1279 
kinds  and  nature  of,  1278 

made  to  a  town  before  its  incorporation,  effect  of,  1283 
may  be  made  by  municipal  corporations,  1280 

parol  without  any  written  instrument,  1280,  1281 


are  to  pages.]  IlSTDEX.  1489 

Dedication  {continuciT). 

must  be  made  by  the  owner  of  the  fee  or  estate  therein,  1280 

no  necessity  for  a  written  instrument  making,  1283 

of  highway,  when  public  responsible  for  defects  in,  1282 

land  as  a  public  square,  effect  of,  1282,  1283 
once  made,  irrevocable,  1283 
party  who  makes,  1280 
principles  in  regard  to,  1287,  1288 

of  estoppels  in  pais,  how  applied,  1282 
requires  acceptance  by  the  public,  1279 

rule  at  common  law,  is  the  application  of  estoppels  in  pais,  1281 
to  pious  uses  may  be  effectual,   1282 
what  necessary  to  constitute,  1285 
when  j)resumcd  from  declarations  of  owner,  1281 
Deed- 
by  grantor  without  title,  may  give  rise  to  an  estoppel,  976 
estoppels  by,  affect  party  claiming  under  party  bound,  720 

applicable  to  certificates  of  acknowledgment,  731,  735 
applies  to  secret  trusts,  737 

where  party  destroys  deed,  737 
as  regards  deeds-poll,  722,  726 
binds  grantor,  his  heirs,  etc.,   712 
do  not  avail  any  but  parties  and  privies,  713 
doctrine  as  to  married  women's  acknowledgments,  731,  735 
estops  grantor  from  denying  his  interest  in  the  land,  718 
setting  ujj  equitable  claim,  828,  829 
claim  of  homestead,  828,  829 
extends  to  persons  claiming  under  the  person  estopped,  712 
how  affected  by  fraud,  735,  737 
in  case  of  waiTauty  against  warranty,  722 
is  a  mode  of  preserving  property,  714 
may  be  waived  by  party,  1412 
must  be  reciprocal  or  mutual,  713,  719 
on  what  founded,  711 

one  not  a  party  cannot  take  advantage  of,  713 
prevents  disputing  boundary  lines,  730 
question  of  intention,  714     ' 
requisites  to  create  it,  714,  715 
strangers  cannot  take  advantage  of,  720 
when  administrator  lx)und,  721 

and  when  not  applicable  to  married  woman,  715,  717 
it  takes  effect  on  homestead,  725,  728 
they  create  a  title,  712 
where  truth  appears  on  face  of  instrument,  722 
whether  applicable  to  infants,  717,  718 
executed  by  public  officers,  when  an  estoppel  on  the  state,  1264 
Vol.  I.— 94 


1490  Index.  [Heferences 

Deed — continued. 

executed  iu  blank,  when  o^vncr  estopped  by,  1089 

no  averment  to  contradict  allowed,  710,  711 

of  land  in  adverse  possession  of  another,  effect  of,  730 

streets,  alleys,  etc.,  when  regarded  a  dedication,  1284 
recitals  of,  in  a  bill  of  sale,  conclusive,  758 
in,  conclusive  against  party,  711 

when  they  convey  an  after-acquired  title,  785,  786 
requisites  of,  to  pass  an  after-acquired  title  by  estoppel,  807,  808 
under  partition  proceedings,  its  eftect  as  an  estoppel,  816 
when  a  bar  to  recovery  in  ejectment,  736 

conclusive  evidence  of  dedication,  1284 
with  covenants  estops  widow  from  claiming  dower,  854,  857 
Deeds — 

are  the  exclusive  evidence  of  the  contract,  709 
executed  by  parties  by  wrong  name,  effect  of,  708 
operation  of,  how  ascertained,  709 

parties  not  allowed  to  contradict  recitals  or  declarations  in,  710 
party  esto])ped  from  disputing  what  he  has  affirmed  by,  707 
that  are  within  the  rule  of  passing  an  after-acquired  title,  794 
third  parties  not  bound  by  estopjiel  by,  707 
Default— 

for  want  of  appearance,  71,  72 

in  a  judgment,  by  court  should  determine  jurisdiction,  66 

judgment  by,  binding  effect  of,  44,  46 

does  not  bar  counter-claim,  47 
effect,  how  limited,  45 
not  subject  to  collateral  impeachment,  4.-Q 
what  conclusive  of,  44,  46 
when  an  estopj^el,  41 
Defects — 

in  organization  of  a  corporation,  when  no  defense,  1398 

no  defense  to  stockholder,  1398 
Defense — 

of  duress,  when  party  estopped  from  setting  up,  72& 
former  action,  when  it  must  be  plead,  1417 
fraud  merged  in  judgment,  458 

who  may  set  it  up  against  judgments,  452 
judgment  recovered  under  the  Roman  law,  77 
matters  already  in  issue,  77 

part  payment,  inadmissible  in  actions  to  revive  judgments,  138 
res  judicata  may  be  shown  by  oral  evidence,  113 
ultra  vires  available  only  on  behalf  of  the  government,  1319 
waiver,  an  estoppel,  954,  955 
pleading  that  judgment  is  no  bar,  234 
when  it  cannot  be  used  as  a  new  cause  of  action,  260 


are  to  pages.']  INDEX.  1491 

Defenses — 

available  against  judgments,  when  the  basis  of  a  new  action,  1435,  143€ 
in  actions  brought  on  judgments  of  other  states,  664,  665 

under  the  Roman  law,  76 
not  made,  barred,  548 

unavailable  after  judgment,  128,  129 
once  set  up,  merged  in  judgment,  312 
that  cannot  be  set  up  by  tenant  in  action  for  rent,  997 
to  actions  on  judgments  of  other  states,  666,  667 
why  merged  in  a  judgment,  260 
Defendant — 

after  default  and  arrest  cannot  impeach  judgment,  46 
cannot  deny  plaintiff's  title  in  an  action  for  mesne  profits,  230 

plead  any  matter  which  forms  ground  of  error  in  judgment,  561 
that  which  might  have  been  litigated  in  former  action,  561 
the  pendency  of  writ  of  error,  561 
enticed  within  jurisdiction  of  court  bound  by  judgment,  547,  549 
estopped  by  judgment  if  on  demurrer,  321,  322 
estoppel  of,  by  pleading  in  an  action,  1184 
failing  to  use  his  defense,  forever  precluded,  309 
how  he  may  defeat  the  effect  of  foreign  judgment,  597 
in  ejectment,  by  judgment  in  action  for  mesne  profits,  222 

execution  allowing  property  to  be  sold  without  objection,  929,  930 
estopped  from  questioning  validity  of,  929 
judgment  for  in  trespass,  cllect  of,  300 
when  an  absolute  bar,  280 
may  be  conclusive  against  one  and  not  others,  106 
must  be  served  with  process,  415 
may  call  upon  any  one  who  is  liable  to  defend,  158 
must  show  subject  matter  the  same,  104 
relying  on  same  matter  in  issue  should  plead  it,  1419 
when  he  cannot  go  into  original  merits  of  cause,  680,  681 

may  take  advantage  of  an  estoppel  without  pleading,  1418 
will  not  be  allowed  to  show  title  in  another,  993 
not  allowed  to  question  corporate  organization,  1403 
"who  fails  to  plead  fraudulent  service  concluded,  547,  549    , 
Definition — 

of  a  judgment,  25,  26 
record,  17 
action,  26 

in  personam,  34 
in  rem,  33 
judgments  in  rem,  344,  345 
term  estoppel,  1 

the  term,  parties  bound  by  judgments,  148 
record,  18 


1492  Index.  [Beferences 

Defluition  (continued). 

of  "willfully,"  3,  4 
Definite— 

and  particular  recitals  create  an  estoppel,  742 
Delivery — 

recitals  of,  in  a  written  instrument,  conclusive,  774,  751 
Demand — 

or  cause  of  action,  when  the  same,  90 
Demands — 

passed  upon  by  way  of  set-off,  barred,  279 
Demurrer — 

admissions  by,  effect,  320,  321 

distinctions  between  admissions  on,  and  on  verdict,  320 

judgment  on  bars  another  action  between  same  parties  on  same  facts,  822 
conclusive  until  reversed  on  appeal,  321 
for  defendant,  effect  of,  322 
of  what  conclusive,  321 
when  a  bar,  106 

it  cannot  be  pleaded,  323 

nature  and  eflfect  of,  319,  320 

to  a  bill  in  equity,  effect  of  overruling,  323 
Denial  — 

of  incumbrance  by  mortgagee,  1036,  1037 

mortgagee  as  to  having  possession,  binds  him,  1037 
Deposition — 

party  taking  estopped  from  objecting  to  it,  338 
Derivation — 

of  the  term  "  equitable  estoppel,"  865,  866 
Design — 

and  utility  d  estoppels  in  pais,  929 

of  estoppels  in  pais,  911 

the  clause  acknowledging  payment  in  a  deed,  461 

to  mislead  not  necessary  to  create  an  estoppel,  1078 
Determination — 

by  court  that  it  has  jurisdiction,  66 

of  appellate  court  as  to  jurisdiction,  conclusive,  118,  119 
jurisdiction,  conclusive,  315 
Determinjitions— 

of  visitors,  trustees,  &c.,  conclusive,  509 

that  bind  all  parties,  348 
Devisee- 
purchaser  from  under  a  forged  will  takes  good  title,  382 

when  estopped  by  consenting  to  a  sale  by  executor,  1251 
Difference — 

between  legal  and  equitable  estoppels,  stated,  920 

silence  and  encouragements  in  creation  of  estoppels,  1088,  1089 


are  to  pages.]  InDEX.  1493 

Difference  (continued). 

none  between  formal  or  summary  action  of  court,  136 
Difficulty  — 

in  ascertaining  whaj,  is  an  entire  demand,  250 

determining  whether  courts  are  of  inferior  or  superior  jurisdiction, 

398 
establishing  general  rules  for  equitable  estoppels,  1444,  1445 
of  establishing  rules  ascertaining  whether  second  suit  same  as  first,  330 
stating  how  far  positive  fraud  necessary  to  an  estoppel,  1089, 1090j 
Discharge — 

in  bankruptcy,  authentication  of,  287 

binds  the  whole  world,  286 
conclusiveness  of,  285,  287 
must  be  plead,  1415 

set  up  to  bar  a  judgment,  276 
not  subject  to  collateral  attack,  284,  287 
remedy  for,  when  fraudulent,  285 
■when  a  complete  bar,  286 
conclusive,  284,  288 
of  a  rule  to  show  cause,  conclusive,  139 

bankrupt  does  not  affect  the  vesting  of  his  after-acquired  title,  805 

must  be  pleaded  in  bar,  143G 
surety,  when  dependent  on  equitable  estoppel,  1223 
under  the  insolvent  laws,  a  bar,  107 

when  a  bar,  107 
Disclaimer — 

in  ejectment,  effect  of,  229 
of  title  by  infant,  when  an  estoppel,  1255,  1256 
tenant  an  estoppel  in  pleading,  1440 
Discontinuance — 

of  suit  without  judgment,  no  bar,  332 
Dismissal — 

by  agreement,  judgment  of,  effect  of,  296 
general  rule  as  to  judgments  on,  474 
judgment  of,  effect  of,  295 

how  made  available,  1417 
may  l)e  as  conclusive  as  one  on  the  merits,  296 
without  prejudice,  296 
of  a  bill  brought  by  tax-payer  to  enjoin  county  bonds,  472 
doctrine  as  to  effect  of,  471 
in  federal  courts,  when  absolute,  473 
when  it  may  be  plead  in  bar,  471 
not  conclusive,  473 
action,  for  infringement  of  patent,  475 
bill  for  want  of  equity,  473 
<  on  demurrer,  effect  of,  472 


1494  Index.  [Beferenc6$ 

INsmissal  (continued). 

of  bill  oa  grounds  that  there  is  an  adequate  remedy  at  law,  472 
creditor's  bill,  effect  of,  472 
libel  for  divorce,  etfect  of,  471 
suit,  when  it  cannot  be  set  up  as  a  bar,  332 
writ  of  error,  effect  of,  122 
presumption  where  it  is  not  without  prejudice,  474 
without  prejudice,  effect  of  use  of  term,  474 
no  bar,  471 
Dispnted — 

boundary  line  may  be  settled  by  estoppel,  il270 
Dissolution— 

of  marriage, 'by  decrees  in  other  states,  637,  661 
Distiuctiou — 

as  to  modern  and  ancient  systems  of  pleading,  102 

between  a  foreign  judgment  as  a  cause  of  action  and  a  defpnsCj  586 

judgment  as  a  bar,  and  as  proof  of  its  own  existence,  482,  483 
verdict  on  a  special  and  common  count,  103 
courts  of  limited  and  general  jurisdiction,  379 
effect  of  judgments  in  rem  and  in  personam,  140 
estoppels  in  pais  and  equitable  estoppels,  869,  870,  908 
general  and  limited  issues  iu  an  action,  237 

particular  recitals  as  estoppels,  748,  749,  774 
judgments  in  rem  and  in  personam  stated,  345 

on  merits  and  demurrer,  820,  321 
lack  of  jurisdiction  and  irregularity  in  obtaining  it,  421 
nullity  and  irregularity,  58 

real  judgments  in  rem  and  proceedings  in  the  nature  of,  396 
record  of  superior  and  inferior  courts,  409,  410 
several  and  distinct  rights  of  action,  254 
standing  by  silently  and  taking  an  active  part,  1080 
superior  and  inferior  courts,  399 
void  and  voidable  acts,  62,  64 

judgments,  50,  501,  506 
in  character  of  parties  suing,  94 

modern  and  ancient  practice  as  to  issues,  111 
Distinctions — 

made  in  the  Roman  law  in  pleading  estoppels,  77 

stated  in  courts  whose  decisions  are  conclusive,  and  those  not,  409,  410 
Divided  court- 
judgment  of,  conclusive,  121 
DiTidends — 

payment  of,  estops  corporation  denying  it  has  earned  them,  1321, 1322 
Divorce — 

decrees  are  in  the  nature  of  judgments  in  rem,  343,  650 
doctrine  in  regard  to  in  Illinois,  651 


are  to  pages."]  InDEX.  1495 

Divorce  {continued). 

decrees,  doctrine  in  regard  to,  in  New  York,  646,  649 

in  other  states,  validity  of,  depend  on  jurisdiction,  638,  639 

when  void,  642,  643 
jurisdiction  upon  what  dependent,  640,  641 
of  courts  of  other  states  without  jurisdiction,  649,  650 
rendered  in  other  states,  after  temporary  residence,  644,  646 
when  residence  affects,  643,  656 
judgment  in,  conclusive,  475 

recitals  in,  when  may  be  contradicted,  641,  642 
proceedings,  when  fraudulent,  if  obtained  in  other  states,  643,  652 
Divorces — 

foreign,  same  principles  apply  to,  as  to  other  judgments,  644 
in  other  states,  doctrine  in  regard  to,  637,  661 
Doctrine — 

against  parties  enticed  into  a  state,  547,  549 

splitting  actions,  246,  256 
as  laid  down  in  the  Duchess  of  Kingston's  case,  195 
as  to  application  of  estoppels  to  tenants  in  common,  1000,  1001 
conclusiveness  of  divorce  decrees,  475,  476 

judgments  of  inferior  aiid  superior  courts,  417 
estoppel  between  vendor  and  vendee,  1010 
estoppels  in  2}ciis  deduced  from  the  authorities,  898 
former  acquittal  or  conviction,  485,  507 
judgments  in  ejectment,  226 

of  courts  with  and  without  jurisdiction,  420,  42^ 
in  United  States  courts,  143 
merger  of  judgment,  126,  127 
new  trials  in  criminal  cases,  488,  490 
conclusiveness  of  admiralty  and  prize  decrees,  349,  357 
on  defendants,  277,  278 
at  law  in  regard  to  pleading  by  estoppel,  1433 
and  origin  of  estoppels  between  landlord  and  tenant,  980,  982 
founded  on  the  case  of  the  Duchess  of  Kingston,  141,  142 
in  England  as  to  plea  of  ulti'a  vires,  1315,  1317 

and  America  as  to  foreign  judgments,  590,  597 
in  Gates  v.  Preston,  questioned,  264,  276 

regard  to  witnessing  execution  of  instruments,  1043,  1046 
regard  to  attachment  proceedings,  359,  363 

certificates  given  by  mortgagors,  1024,  1031 

of  acknowledgment  by  married  women,  731,  735 
circulars  and  advertisements  as  estoppels,  923,  924 
common  law,  origin  of  estoppels  in  pais,  968 
conclusiveness  of  judgments,  552 
dedication,  1287,  1288 
destruction  of  a  fund,  115 


1496  Index.  [References 

Doctrine  (continued). 

in  regard  to  effect  of  record,  291,  292 
election,  1186,  1187 

of  remedies,  1178,  1179 
estoppel  by  record,  8 
estoppels  in  pais  5,  G 
estoi^pel  of  acceptors  of  negotiable  securities,  1132,  1133 

principal,  by  acts  of  agent,  1201,  1225 
foreign  divorces,  G37,  061 

and  judgments  of  other  states,  571,  703 
illustration  of  in  regard  to  recitals,  757,  758 
in  regard  to  judgments  in  ejectment,  220 

in  California,  225 
Iowa,  220,  225 
Kentucky,  220 
Maryland,  220 
Minnesota,  220 
Missouri,  227 
New  Jersey,  220 
Ohio,  220 
Pennsylvania,  220 
South  Carolina,  220 
Tennessee,  220,  221 
federal  courts,  697,  698 
of  courts  of  last  resort,  121 
justices  of  the  peace,  408,  404 

in  countries  at  war,  698,  702 
liability  of  company  for  acts  of  agents,  1336,  1339 
married  women  carrying  on  separate  trades,  etc.,  1236,  1240 
oflBcial  bonds  delivered  when  partially  executed,  1138,  1139 
parties  claiming  title  from  same  source,   977 
payment  of  money  under  judgments,  536,  538 
proceedings  by  garnishment,  363,  372 
ratification,  acquiescence,  at  judicial  sales,  1189,  1191 
recitals  in  bonds,  707,  772 
recital  of  payment  in  a  deed,  760,  761 
setting  aside  judgment  for  fraud,  452,  467 
stare  decisis,  115,  123 
surrender  of  possession,  988,  989 
surrenders,  1003,  1001 
the  conclusiveness  of  admissions,  862,  863 
as  to  terms  "superior,"  "  inferior,"  "  limited  "  and  "  general,"  398,  418 
transfer  of  stock  estopping  owner  to  claim  title,  1324,  1325 
two  or  more  actions  pending  at  the  same  time,  126 
Utah  divorces,  643,  656 
of  conclusiveness  applicable  to  officer's  returns,  339,  546 


are  to  pages.]  INDEX.  1497 

Doctrine  (continued). 

of  equitable  estoppel  as  applied  in  ancient  times,  864 

illustrated  by  leading  English  cases,  882,  885 
applicable  to  administrators,  etc.,  1261,  1263 
declared  in  Welland  Canal  v.  Hathaway,  885,  886 
extension  of  in  insurance  cases,  1335 
lies  at  the  foundation  of  morals,  875 
in  regard  to  admissions,  863 
probably  existed  in  every  code,  863 
estoppel  applied  to  corporations,  1299,  1409 
applies  to  states,  810,  814 
as  applicable  to  the  U.  S.,  810 
beneficial,  when  properly  understood,  11 
by  acquiescence,  894,  895 

deed  and  by  instrument  in  writing,  707,  858 
in  pleading,  14 

not  unwise  or  unreasonable,  7 
results  from  public  policy,  7 
when  it  may  debar  the  truth,  863 
estoppels  as  applied  to  share-holders  and  corporations,  1394,  1409 

to  representations  to  prevent  their  operating  as  fraud,  903 
equitable  and  legal,  10 

in  pais  applicable  to  married  women,  1233,  1234 
as  applied  to  land,  1053,  1111 

sureties,  1223,  1225 
in  their  application  to  dealings,  a  salutary  one,  913 
on  what  founded,  913 
peculiarly  an  equitable  one,  869 
principles  in  regard  to  the,  863,  869 
very  old  head  of  equity,  863,  864 
regard  to  municipal  securities,  1370,  1383 
implied  agency  founded  on  estoppels  in  pais,  1209 
Picard  v.  Sears,  876,  877 
recitals  as  estoppel,  12 
res  judicata  applies  to  all  courts,  117 
as  to  strangers,  114 
explained  in  Sheldon  v.  Edwards,  239 
in  the  civil  law,  90 
estoppels,  standing  by,  &c.,  applies  to  mortgages,  1039 
subsequent  ratification  by  principal  when  applicable,  1212,  1213 
the  law  of  the  case,  to  what  applicable,  117 

Roman  law  as  to  heirs,  privies,  etc.,  182,  186 
TJ.  S.  supreme  court  to  collaterally  impeaching  judgments,  426,446 
as  to  plea  of  ultra  vir'es,  1317,  1318 
in  regard  to  probate,  394 
divorce  decrees,  658,  659 


1498  Index.  [Re/ercncet 

Doctrine  (continued). 

of  the  U.  S.  supreme  court  to  estoppels  affecting  title  to  land,  1057, 1058 
jurisdictional  matters,  73,  74 
void  judgments,  55,  59 
judgments  of  other  states,  601,  626 
municipal  bonds,  1371,  1383 
irregularities,  59,  60 
conclusiveness  of  decrees,  478,  479 
Vattel  in  regard  to  foreign  judgments,  572 
on  which  the  rule  of  res  judicata  is  based,  130 
that  acts  of  oflBcers  de  facto,  bind  corporations,  1C06 

after-acquired  titles  inure,  applies  to  mortgages,  1018 
fraud  vitiates  every  proceeding,  how  taken,  468 
no  man  shall  take  advantage  of  his  own  wrong,  877,  878 
"one  of  two  innocent  persons  must  suflfer,"  to  principal  and  agent, 
1222,  1223 
upon  which  judgments  as  res  judicata,  are  founded,  140 
why  strangers  are  not  bound  by  personal  judgments,  140,  141 
Domestic- 
judgments  when  conclusive,  fraud  not  a  good  plea  to,  674 

judgments  of  other  states  are  put  on  footing  of,  601 
Dower — 

accepting  deed  estops  grantee  from  denying  widow's  right  to,  855 
assignment  of,  estops  parties  from  denying  that  land  was  subject  to,  858 
barred  by  widow  executing  deed  with  warranty,  854,  855 

standing  by  silently  at  administrator's  sale,  853 
circumstances  which  estop  a  widow  from  claiming,  853 
tenant  estopped  to  deny  husband's  seizin  by  covenants  in  deed,  856 
disclaimer  by  widow,  when  it  bars  action  for,  853,  854 
election  of  widow  to  waive,  conclusive,  1177 
executors,  when  estopped  from  disputing,  857 
grantee  in  deed,  when  estopped  to  deny  existence  of,  855 
in  suit  for,  when  husband's  title  cannot  be  denied,  855 
infant  bound  by  release  of,  857 

instances  of  acts  which  bar  widow  from  claiming,  853,  855 
judgment  in  action  for,  conclusive,   136 

when  conclusive  on  widow,  556 
when  conclusive  in  an  action  for  mesne  profits,  856 
barred  by  widow  executing  deed  with  general  covenants,  856,  857 
parol  assignment  of,  conclusive,  858 

parties  claiming  under  husband,  cannot  dispute  widow's  right  to,  857 
release  of,  affects  no  one  but  the  releasee,  858 
extinguishes  right  to,  857 
in  a  mortgage  deed,  effect  of,  857 
widow  barred  by  estoppel  from  claiming,  853 

receiving,  estopped  to  claim  land  settled  on  her,  858 


are  to  pages.]  InDEX.  1499 

Dower  (continued). 

widow  representing  land  free  of,  estops  her,  854 
what  acts  bar  a  widow  from  claiming,  853 
Duchess — 

of  Kingston's  case,  rule  in,  105,  141,  142 
Due  process  — 
of  law,  YO,  71 

law  defined,  70,  72 

requisites  of  to  pronounce  judgment  by,  70 
Duty— 

of  court  to  define  the  elements  of  equitable  estoppels,  1443,  1444 
litigants  to  take  care  of  their  own  rights,  308 
party  to  assert  his  claim,  or  be  estopped,  1066,  1067 
those  who  rely  on  an  estoppel  to  show  what  has  been  determined,  370 

E. 

Easement — 

by  dedication,  1277,  1279 

character  of,  created  by  estoppel,  how  determined,  1280 

created  by  allowing  another  to  spend  money  on  strength  of,  1277  i 

defined,  1277 

how  affected  by  estoppels,  1277 

party  expending  money  on  right  of,  may  claim  by  estoppel,  1277 

when  estopped  to  set  up  claim  to,  1278 
title  to,  when  it  inures  by  estoppel,  1277 
when  granted  by  parol,  conclusive,  1277 
Ecclesiastical  Courts — 

proceedings  of  in  rem,  348 
Ecclesiastical  Tribunals — 

proceedings  in,  a  bar,  107 
EflFect— 

of  an  estoppel,  13 

created  by  judgment,  280 

offer  of  judgment,  49 

appearance  by  attorney  in  judgments  of  other  states,  630,  635 

consent,  judgment,  49 

decrees  in  chancery,  468 

granting  letters  of  administration,  404 

judgment  does  not  depend  upon  reasons  given  for  it,  101 

justices  of  the  peace,  403,  404 

a  reversal  of  judgment,  106,  117,  118 

system  of  pleading  in  this  country  as  to  res  judicata,  308 

dedication,  1278,  1281 

dismissal  on  error,  122 

estoppels  on  the  surrender  of  particular  estates,  1003 


1500  Index.  [Refereneet 

EfiPect  {continued).  "i 

of  failing  to  set  up  and  plead  matters  of  defense,  128,  130,  260 
final  judgment  that  is  res  judicata,  75 

former  judgment  does  not  depend  on  form  of  pleadings,  1415 
judgment  affirmed  by  divided  court,  121 

as  merger  of  all  causes  or  defenses,  128,  130 

to  all  matters  that  might  have  been  litigated,  243,  244 
by  default,  47,  49 

depends  upon  same  point  being  in  issue,  299 
for  services,  as  a  merger,  263 
in  action  qu.  cl.fr.  328 

extinguishing  cause  of  action  or  demand,  279 
in  rem,  355,  356 
of  appellate  court,  118 

other  states,  jurisdiction  of  court,  enquirable  into,  601 
rendered  with  jurisdiction,  675,  676 
on  demurrer,  321,  323 
general  verdict,  244 
parties  and  privies,  124 
rendered  on  a  general  ofier  of,  132,  133 
same  whether  rendered  on  evidence,  or  technicality,  128 
upon  party  temporarily  in  another  state,  617,  618 
where  defendant  pleads  general  issue,  328 

party  fails  to  plead  in  abatement,  298 
plaintifi's  claim  is  indivisible,  245 
against  party  by  wrong  name,  298 
of  dismissal,  295,  296 

other  states  rendered  during  the  late  war,  698,  702 
jurisdiction,  68,  69 

pendency  of  appeal  on  judgment  of  another  state,  679 
probate  proceedings,  375 
recitals  in  deeds,  744 

of  payment  in  deeds,  760 
res  judicata,  75 

second  appeal,  in  same  cause,  118 
setting  out  foreign  judgments  in  pleading,  1436 
sheriff's  deed  in  partition,  304 

to  be  given  in  other  states  to  domestic  judgments,  678 
which  must  be  given  judgments  of  other  states,  678,  679 
Efflux— 

of  term  ends  the  estoppel  of  tenant,  1003 
Either  party — 

to  cause,  may  avail  themselves  of  an  estoppel,  97 
Ejectment — 

action  in,  against  tenant,  how  landlord  is  bound,  226 
of,  upon  equitable  title,  220 


are  to  pages.]  INDEX.  1501 

lyectment  (continued). 

action  in,  on  contract  for  sale  of  land,  220 

effect  of  admitting  party  to  defend,  226 

essential  requirements  to  conclusiveness  of  personal  judgments,  143 

estoppel  by  judgment,  parties  affected  by,  146 

estoppels  founded  on  fundamental  principles,  147 

ought  to  be  reciprocal  or  mutual,  146 
exclusive  and  concurrent  jurisdiction,  distinction  in  judgments,  142,  143 
grantor,  when  he  cannot  bring  on  after-acquired  title,  814 
judgments  in,  220,  231 

conclusive  on  the  questions  of  title,  226 
common  law  doctrine  as  to,  226,  227 
confer  no  new  title  on  successful  party,  228 
may  be  used  by  either  party  thereto,  230 
by  confession,  228 

why  conclusive,  228 
entered  by  agreement  of  parties,  228,  229 
on  disclaimer  by  defendant,  229 
distinctions  in  regard  to  conclusiveness  of,  229 
bars  defendant  from  questioning  plaintiff's  title,  230 
estops  defendant  from  setting  up  same  title,  230 
bar  when  plead,  conclusive  in  evidence,  230,  231 
does  not  bind  strangers,  221 
settling  title,  effect  of,  222 

effect  of,  for  recovery  of  one  of  two  parcels  of  land,  222 
when  silent  as  to  damages,  222 
conclusive  evidence  for  plaintiff  of  what,  222 
estops  defendant,  222 
conclusive  of  defendant's  possession,  223 
when  tenants  are  concluded  by,  223 
do  not  affect  third  parties  or  strangers,  224 
against  tenant,  224 

does  not  bar  new  title  acquired  after,  225 
who  are  privies  to,  226 

in  action  of,  conclusive  as  to  right  to  patents,  220 
actions  of,  conclusive,  220,  221,  224,  226 
against  person  admitted  to  defend,  226 

plaintiff,  when  not  conclusive,  225 
tenant,  when  conclusive  on  landlord,  226 
bars  parties  and  privies  as  to  subject  matter,  224 
binds  parties  and  privies,  146,  221,  223,  226 
by  confession,  conclusive  effect  of,  221,  228 
judgment  in,  conclusive  effect  of,  310 
doctrine  that  they  are  no  bar,  221,  226 
effect  of,  when  joint,  226 

in  modern  times,  226,  227 


1502  Index.  [Re/erencea 

Ejectment  (continued). 

estops  tenant  to  deny  he  was  iu  possession,  224 

final,  where  fictitious  actions  are  abolished,  221, 227 

litigating  title  in  actions  of,  226 

not  conclusive  against  after-acquired  titles,  225 

judgments  in,  on  award  of  arbitrator,  220 

proves  plaintiff's  possession,  224 

same  in  federal  as  in  state  courts,  225 

rule  in  California,  as  to  actions  in,  225 

England,  as  to  actions  in,  229,  230 
Iowa,  as  to  actions  in,  221 
Kentucky,  as  to  actions  in,  221 
Maryland,  as  to  actions  in,  225 
Minnesota,  as  to  actions  in,  221 
Missouri,  as  to  actions  in,  227 
New  Jersey,  as  to  actions  by,  220 
Ohio,  as  to  actions  of  ejectment,  221 
Pennsylvania,  as  to  actions  in,  220 
South  Carolina,  as  to  actions  in,  221 
Tennessee,  as  to  actions  in,  221 
when  a  bar  to  future  litigation,  224,  225 
when  bars  an  action  qu.  cl.  fr.  224 
when  conclusive  as  to  mesne  profits,  220,  222,  223 
of  lessor's  title,  224 

right  of  possession,  224 
exception  to  rule  of  res  judicata,  227 
it  loses  its  conclusive  effect,  223,  224 
judgment  and  verdict  in  action  of,  of  what  conclusive,  220 
may  be  maintained  on  a  title  by  estoppel,  736 
requirements  to  make  judgment  in,  conclusive,  220 
where  two  trials  necessary,  220 
see  Judgment, 
Electing— 

one  of  two  remedies  bars  the  other,  339 
Election — 

by  adopting,  ratifying,  or  confirming  a  will,  1162 
landlord  accepting  rent,  1173,  1174 

to  treat  party  as  tenant  or  trespasser,  1175 
married  women,  when  an  estoppel,  1238 
minor,  when  an  estoppel,  1257,  1258 
tenant  to  hold  under  lease  after  expiration,  1175 
widow,  conclusive,  1175 
how  made,  1178 
doctrine  of,  1156,  1189 

applicable  to  judicial  proceedings,  535,  536 
an  extension  of  equitable  estoppels,  10 


are  to  pages.}  IndEX.  1503 

Election  (continued). 

doctrine  of,  applies  to  leases,  deeds,  etc.,  1156 

origin  and  nature  of,  1157,  1158 
estoppel  by,  founded  on  knowledge  of  party's  rights,  1157 
extent  of  estoppel  by,  1183 
foundation  of  the  doctrine  of,  1158 

grounds  of  recognition  in  England  and  this  country,  1156 
implies  knowledge,  1157 
may  be  implied  as  well  as  expressed,  1162 
modification  of  doctrine,  1158 
of  one  of  several  remedies  bars  the  rest,  1178 

party  to  affirm,  estops  him  from  disaffirming,  1173 
on  what  founded,  1156 
once  made  final,  1162,  1175 
party  failing  to  exercise  is  estopped,  1173 
right  to  exercise,  when  lost,  1173 

same  rules  applicable  as  to  acquiescence  and  ratification,  1157 
to  affirm  sale  prevents  an  action  to  recover  goods,  1179 
proceed  at  law,  bars  relief  at  equity,  1178,  1179 
sue  in  assumpsit  waives  tort,  1179 
what  acts  are  equivalent  to,  1156,  1157 

is  a  binding,  1157 
widow  bound  to  make,  1178 
Elements — 

necessary  to  a  plea  of  res  judicata,  65 

render  foreign  judgment  conclusive,  571 
of  equitable  estoppels,  duty  of  court  to  state,  1444 

estoppels,  876,  878,  887,  899,  906,  910,  911,  912,  915,  917,  919,  920, 
1000,  1010,  1057,  1060,  1069,   1074,   1087,  1090,  1098,  1099,  1110, 
1111,  1113,  1114,  1119,  1120,  1122 
Enactment — 

of  the  legislature  establishing  boundaries,  1266 
Encouraging — 

acquisition  of  land  by  another,  creates  an  estoppel,  1054 
Ending— 

of  litigation,  prevents  re-trial  of  same  matters,  465,  466 
English  doctrine — 

as  to  conclusiveness  of  probate  proceedings,  387 

fraud  of  infants  creating  equitable  estoppels,  1253,  1254 
in  regard  to  foreign  divorces,  657 

notes,  bills,  etc.,  1113,  1114 
payment  in  deeds,  760 
Enjoining — 

execution  of  judgment,  when  not  allowed,  425 
Entering— 

appearance  waives  jurisdictional  questions,  451 


1504  Index.  [EefereTices 

Enticing — 

party  into  state  for  service,  547,  549 
Entries — 

and  orders  made  in  a  case,  when  conclusive,  306 
Eqnitable  Estoppel — 

.    acceptance  of  dedication,  binds  owner  by,  1285 
by  accepting  award  of  damages,  11G7 

insurance  policy,  to  deny  its  conditions,  1167 
premium  with  notice  of  other  insurance,  1356 
acquiescing  in  sale,  and  receiving  proceeds,  1250 
acts  as  to  dedication,  which  are  equivalent  to,  1282 
of  agent  may  create  as,  1201 
the  legislature  may  be,  1270    . 
by  acts  or  declarations  to  expend  money,  1119 
acts  and  representations  of  wife,  when,  1235 
by  admissions  of  attorney  made  before  ti'ial,  are,  943 

should  be  distinct  and  formal,  941 
admissions  which  are  regarded  as,  914 
advantage  of,  930,  931 
adverse  possession,  1293,  1296 
affect  corporations  same  as  natural  persons,  1299 
affects  personal  property  in  existence  only,  1074 

affecting  title  to  land^  acts  and  declarations  not  only  grounds  of,  1091 
apply  to  private  or  public  sales,  1054 
available  at  law,  1443 
case  of  Wendell  v.  Van  Rensselaer,  1056 
cases  illustrating  application,  1093,  1095 
definition  of  "  willfully,"  1086 
distinction  as  to  various  deeds,  1088,  1089 
effect  on  record  title,  1088 
essential  elements  of,  1074 

principles  of,  1080,  1088 
ground  of  doctrine,  1090 
how  affected  by  the  statute  of  frauds,  1054 
created,  1087,  1088 
far  fraud  an  element,  1089,  1090 
illustrations  of  doctrine,  1055,  1060 
maxims  applicable,  10G2 
representation  necessary  to  create,  1086 
no  positive  rules  regarding,  1091 
prevents  setting  up  title,  1055,  1056 
what  necessary  to  create,  1092 
when  enforced  against  party,  1085 

it  cannot  be  set  up,  1092,  1093      • 

should  not  be  applied,  1084,  1085 

■where  one  having  lien  fails  to  give  notice,  1092 


are  to  pages.]  IndEX.  1505 

EqnitaWe  estoppel  (continued). 

affecting  title  to  land,  who  bound  by,  1095,  1096 

property,  enforced  to  prevent  fraud,  1054 
widow's  right  to  dower,  1178 
after  receiving  benefits  of  contract,  1152 
aflBrming  and  ratifying  acts  with  knowledge,  1191 
against  infringers  of  patents,  932 

the  defense  of  usury,  1136,  1137 
agents  failing  to  indorse  other  insurance  on  policy,  1352 
allowing  agent  to  waive  conditions  in,  1354 

another  to  expend  money  without  asserting  title,  1065 
a  sale  which  could  have  been  prevented,  1097 
amount  of  fraud  requisite  to  create,  1070 
ancient  doctrine  in  regard  to,  863,  864 
applicable  to  judgments,  336,  343 

licensor  and  licensee,  971,  973 
married  women,  1237 

as  if  unmarried,  1234,  1235 
municipal  corporations,  13G3,  1364,  1366 
personal  and  real  property,  1074 
application  of  maxim  in  regard  to,  1211,  1212 
the  doctrine  illustrated,  884,  885 

to  instruments  not  under  seal,  1112,  1116,  1120,  1125 
judicial  proceedings,  940,  954 
man-ied  women,  1156 
mortgages,  1018,  1051 
negotiable  instruments,  H20,  1125 
partners,  1227,  1231 
principal  and  agent,  1156 
suits  affecting  title  to  land,  866 
applied  to  boundaries,  12GG,  1277 
corporations,  1299,  1409 

same  as  to  natural  persons,  1323,  1367 
every  species  of  property,  872 
insurance  companies,  1331,  1359 
mercantile  transactions,  how  made  available,  1446 
oral  partition,  1200,  1293 
right  of  eminent  domain,  1107 
sureties  in  official  bonds,  1137,  1147 
without  divesting  title  to  prevent  injustice,  11C7 
applies  against  the  United  States,  936 

between  lessor  and  assignee  of  lessee,  973,  973 
in  cases  of  taxation.  936 
apply  irrespective  of  nature  of  property  sold,  1053,  1054 
to  corporations  acting  by  iigents,  1202 

easements,  1277,  1278 
Vol.  L— 95 


1506  Index.  [He/erences 

Equitable  estoppel  (continued). 

apply  to  persons  acting  as  officers  of  corporations,  1305,  1306 
under  disability,  1225,  1226 
notes,  bonds,  etc.,  1112 
transfer  of  certificates  of  stock,  1324 
appropriating  i)rooeeds  of  sale  by  agent,  1220 
is  ai)i)licab]e  to  infants  and  married  women,  1075 
applied  in  a  great  variety  of  instances,  1115 
entirely  the  creature  of  equity,  8G9 
generally  given  in  evidence,  1446 
given  in  evidence,  not  pleaded,  886 
not  odious,  872 

strictly  construed,  and  when  not  allowed,  925 
are  the  creations  of  courts  of  chancery,  871 
arises  from  conduct,  8G2 

when  one  man  accepts  rent  from  another,  968 
as  affecting  title  to  land,  1053,  1111 

to  accepting  and  rejecting  same  instrument,  1176 
acts  of  agent,  1221 

directors  of  corponitions,  1301 
agi'cements  which  are  changed  into  promissory  notes,  1128 
boundaries  by  acquiescence,  1266 
certificate  of  record  of  deed,  934 

stock,  1305 
certificates  of  third  persons,  933,  935 

and  negotiable  instruments,  1103 
contracts,  1303 
dedication,  1283 

how  created,  1280 
easements  created  hy  recitals  in  deeds,  1285 

that  are  dedicated,  1284 
holding  one  out  as  partner,  1227 
landlord  and  tenant,  968,  1008 

married  women  transacting  business,  trades,  1233,  1239 
mortgages,  1303 
money  voluntarily  paid,  1181 
negotiable  securities,  1310 
notes,  bonds,  etc.,  executed  on  Sunday,  1155 

transferred  before  maturity,  1126 
notice  of  service,  941 
occupying  inconsistent  positions,  1177 
official  bonds  delivered  by  principals,  1137,  114'? 
patent-right  and  other  notes,  1128,  1129 
^        payment  of  forged  paper,  1130,  1131 

proceedings  against  trustees,  1225 
available  in  courts  of  common  law,  871 


are  to  pages.]  INDEX.  1507 

Equitable  estoppel  (continued). 

available  in  courts  of  law  and  equity,  1442,  1443 
based  on  equity  and  principles  of  morality,  871 
basis  of,  doctrine  of  implied  agency,  1209,  1211 
between  bailor  and  bailee,  968 

mortgagor  and  mortgagee  as  to  adverse  title,  1297 
vendor  and  vendee,  968 
binds  principal  by  acts  of  agent,  1200,  1224 

corporations  by  acts  of  their  agents,  1299,  1300 
party  and  all  privy  to  liim,  950 
binding  upon  parties  and  privies  as  legal  estoppels,  914 
burden  of  proof  in  cases  of,  1111 
by  acceptance  of  bills,  1132 

commercial  paper,  1131,  1134,  1135 
part  i)ayment  of  claim,  1197 

of  claim  from  legislature,  1197 
possession  under  deed,  975 
rent,  1173,  1174 
accepting  benefit  conferred  by  will,  1187 
under  will,  1185 
bills,  1132 

proceeds  of  invalid  sale,  1197 
and  retaining  proceeds,  1172 

using  property  without  claiming  damages,  1170 
acknowledging  title  in  another  on  which  stranger  relies,  1100 

validity  of  note,  to  claim  it  was  forged,  948 
acquiescence,  1191,  1192 

between  remainder-man,  trustee,  etc.,  1195, 1196 
doctrine  in  regard,  1193 
from  setting  aside  sale,  1197 
in  a  boundary  line,  1271 
improper,  sale,  1196 
pleadings  of  adversary,  953 
in  sale  of  property,  1079 
of  cestui  qice  trust,  1225 

patentee,  1195 
rule  in  regard,  1195 
what  is  sufficient,  902,  903 
what  necessary  to  bind  party,  1196 
where  party  has  knowledge,  1157 
act  or  statement  wliich  cannot  be  contradicted  without  fraud,  909 
acts  of  agents  within  scope  of  authority,  1355,  1356 
attorneys  in  court,  940,  941 
its  officers^  1353 

parties  intended  to  mislead  others,  904,  905 
adjustment  with  knowledge  of  forfeiture,  1352 


1 508  Index.  [Be/erencm, 

Equitable  estoppel  (continued). 

by  admission  by  way  of  a  demurrer  to  pleading,  944 
admissions  in  pleading,  939 

made  to  influence  other  parties,  1120 
must  be  made  in  express  terms,  1120 
of  attorneys,  grounds  upon  which  they  become,  940,  941 
attorney,  substitute  for  evidence,  942 
makers  of  negotiable  instruments,  1121 
on  which  others  have  acted,  938 
rule  as  to,  920 

when  they  must  be  made,  1120 
admitting  title  of  party  to  chattels,  1104 
adopting  forged  signature  to  note,  1203 

part,  from  repudiating  an  instrument,  11G6 
adoiDtion  of  signatures,  1203 

affirming  the  contract,  to  afterwards  repudiate  it,  1172 
existence  of  contracts,  1172 
fraudulent  contract,  1169,  1170 

sale  of  property,  1188 
agent's  consent  to  assignment  of  policy,  1344,  1345 

drawing  up  application  for  insurance,  1356,  1357 
knowledge  of  facts  material  to  risk,  1334 

other  insurance,  1346 
receipt  of  premiums  without  accounting,  1343 
agent  neglecting  to  indorse  other  insurance,  1356 
agi'eement  between  counsel  in  court,  940 
agreement  that  the  relation  of  landlord  shall  exist,  971 
agreeing  to  keep  judgment  alive,  1184 
allowing  another  to  dig  ditch  across  land,  1008 

assignor  to  conduct  business  without  giving  notice,  1154 
bailee  to  claim  goods  as  his,  1103,  1104 
partner  to  deal  with  property  as  his,  1230,  1231 
sheriff  to  sell  exempt  property,  10G7 
suit  to  be  brought  by  wrong  name,  945 
an  election,  extent  of,  1183 
appearing  and  pleading  to  merits,  942 

applying  for  commissioners,  &c.  from  claiming  illegal  appointment,  949 
assisting  at  sale  and  recommending  title,  1100 
attempting  to  take  undue  advantage,  1120 
attornment  to  receiver,  969 
attorney,  admissions  of  facts  in  cause,  941 
attorney's  agreements,  941 
bringing  an  attachment,  1179 

suit  for  the  price  of  goods,  1170,  1171 
building  to  and  recognizing  streets,  127G 
carelessly  signing  papers  which  may  be  notes,  1126,  1128 


are  to  pages.]  InDEX.  1509 

Equitable  estoppel  {continued). 

by  causing  levy  and  sale  set  aside,  1190 
claiming  as  owner,  1100 

deed  to  be  valid,  from  setting  up  invalidity,  948 
second  homestead  exemption,  1168 
collecting  assessments  after  knowledge  of  forfeiture,  1358 
concealment  and  admissions,  939,  967 
conclusive  admissions  in  pleadings,  or  trial  of  case,  944 
conduct,  889,  890 
confirming  fraudulent  deed,  1152 
confusion  and  commingling  of  goods,  1104,  1105 
consent  in  legal  proceedings,  963 
consenting  to  an  amendment  of  judgment,  946 

a  void  sale,  1189 
contracting  in  vievr  of  existing  legislation,  1167,  1168 
contractor  acquiescing  in  decision  of  principal,  1069 
contracts  made  prior  to  organization,  1322 
creditor  inducing  another  to  levy,  1169 
giving  chattel  mortgage  on  property,  1168 
declarations  in  life  insurance  circulars,  924,  925 

prospectus  and  advertisements,  923,  924 
general  terms  to  a  community,  922,  925 
presum2:»tions  that  they  are,  923 
dedication  to  public  use,  1281 

defeating  an  action  on  one  ground,  to  set  up  another,  1184 
•    delay  after  knowledge  of  fraud,  1171 
delivery  of  negotiable  securities,  1311 

policy,  1342 
disavowing  claim  for  damages,  964 
disclaimer  of  title,  947 
election,  1156 

applies  to  deeds,  wills,  etc.,  1156 

borrowed  from  civil  law,  1160 

by  taking  under  a  will,  1156,  1157 

foundation  of,  1100,  1161 

in  taking  under  will,  1159 

may  be  implied  or  express,  1162,  1163 

of  heir  or  legatee,  1159 

once  made,  1177,  1178 

origin  of  doctrine,  1159,  1160 

and  nature  of,  1157,  1164 
prevents  claiming  and  rejecting  same  instrument,  11S6 

inconsistent  rights,  1156 
principles  of,  1186 

ratification  and  acquiescence,  1157,  1158 
electing  to  disaflBrm  voidable  contract,  1163,  1164 


1510  Index.  {References 

Equitable  estoppel  {continued). 

by  electing  to  pursue  one  of  two  remedies,  1178,  1179 
enabling  party  to  obtain  false  credit,  1102 
encouraging  party  to  jiurcliase  property,  929 

and  sanctioning  sale  of  property,  1054 
endorsing  blank  acceptance  to  another,  1121 
enjoying  benefits,  from  rejecting  conditions,  1176 
erecting  buildings  on  land  with  consent  of  owner,  1083,  1084 
establishing  a  right  under,  to  ignoring  instrument,  1166 
execution  of  a  deed,  1312 

executing  mortgage  with  blank  for  name  of  mortgagee,  1121 
expending  money  on  land  under  license,  1106 
under  mistake  of  title,  1082 
express  or  implied  admissions,  1073 

tacit  acquiescence  of  owner,  1096 
failing  to  claim  a  prior  lien,  1167 
demur,  939 

to  a  pleading,  945 
object  to  confirmation  of  sale,  1190 

incompetent  evidence,  950,  951 
or  taking  erroneous  steps  in  cause,  951 
publish  dissolution  of  firm,  1229 
demand  a  jury  trial,  957 
except  to  matters  at  trial,  952 

object  to  introduction  of  instrument  in  eridence,  952 
failure  to  claim  homestead  exemption,  955,  962 

plead  statute  of  limitations,  955 
filing  a  bill  for  injunction,  1190 

cross  interrogatories,  946 
fixing  division  line,  1268 

forfeiture  for  non- payment  of  premium,  1346,  1347 
fraudulent  concealment  of  title,  10S4 
giving  negotiable  instrument  to  raise  money  on,  1121 
going  to  trial  before  referee  without  his  qualifying,  946 
implied  authority  of  agent,  1214 

ratification  of  principal,  1216,  1217 
inducing  others  to  jilace  property  on  one's  land,  1107 
belief  in  a  ratification,  1218 
stranger  to  purchase,  1189 
purchase  of  note  after  due,  1127 
intentionally  or  negligently  inducing  another  to  act,  915 
judgments  which  have  been  acted  upon,  889 
keeping  money  and  property,  928 
knowledge  of  subsequent  insurance,  1346 
laches,  creation  of,  1194 
leaving  negotiable  securities  in  another's  hands,  1191 


are  to  pages.]  IndEX.  1511 

Equitable  estoppel  (continued). 

by  loaning  securities  for  specific  purpose,  1103 
making  an  election,  1173 
manufacturing  patented  machines,  1153 
misleading  one  acting  in  good  faitii,  1078 
mortgagee  receiving  proceeds  of  illegal  sale,  1097 
negligence  in  allowing  parties  to  contract,  899,  900 
executing  contracts,  1126 

papers,  1129,  1130 
not  rescinding  for  fraud  when  discovered,  1171 
negligence  of  maker  of  note,  1129 
obtaining  a  continuance,  946 

an  extension  of  time,  1135,  1136 

for  payment,  1170 
order  from  claiming  it  is  an  error,  951 
omitting  stipulation  from  contract,  1149 

to  traverse  material  allegations,  944 
partial  payment  of  note,  1136 
parol  location  of  boundaries,  1270 
participation  in  corporate  matters,  1823 
party  accepting  part  of  contract,  and  rejecting  the  rest,  927 
paying  legal  demand  with  full  knowledge,  1182 
payment  of  money  into  court,  964,  965 

to  question  validity  of  contract,  1150 
permitting  another  to  hold  himself  out  as  owner,  1101,  1102 
arbitration  in  name  of  husband,  1250 
holder  of  legal  title  to  transfer  it,  1081 
officer  to  pay  out  surplus,  1067 
placing  another  in  position  to  commit  fraud,  893,  894 
pleading  one  defense  prevents  setting  up  another,  947 

without  raising  objections  to  formal  matters,  945 
pointing  out  line  to  party  acting  thereon,  1267 

property  to  be  levied  on,  1189 
possession  of  personal  property  owning  it,  1102 
preventing  competition  at  judicial  sales,  931 

one  from  pleading  good  defense,  1184 
the  happening  of  an  event,  931 
proceedings  in  the  trial  of  a  cause,  943 
promise  of  principal  after  knowledge,  1217 
purchasing  at  judicial  sales,  to  question  decree,  1184,  1185 
promising  to  pay  where  signature  is  forged,  1123 
purchaser  relying  on  statements  of  maker,  1112 
railroad  engineer's  certificate,  935 

ratification  applies  to  municipal  corporations,  1218,  1219 
defined,  1157 
of  forged  signature,  1131 


1512  Index.  {References 

Equitable  estoppel  {continued). 

by  ratilicatiou  of  note  executed  without  authority,  1136 
part  includes  whole,  1219,  1220 
principal,   1203 
or  acquiescence,  1310 

election,  when  irrevocable,  1196 
permitting  judgment  by  default,  1311 
without  prejudice  to  rights  of  strangers,  1310 
what  necessary  to  create,  1215 
when  presumed,  121G,  1217 
ratifying  a  sale  that  they  might  be  avoided,  928 
receipt  of  purchase  money,  928 
receiving  assessments  for  premium,  1368 

benefit  under  fraudulent  deed,  1188 
dividend  under  assignment,  1185 
proceeds  of  a  compromise,  1191 
recognition  of  person  as  partner,  1230 
recognizing  a  void  insurance  policy  as  valid,  1358 
acts  of  party,  1211 
and  adopting  boundary  line,  127G 
signature  made  by  another,  1214,  1215 
rejecting  proofs  on  one  ground  to  set  up  another,  1348,  1349 
relying  on  a  decree,  to  impeach  it,  1186,  1187 
certificate  of  architect,  933 
one  contract,  from  setting  up  another,  949 
representation,  896,  897 

representations  of  officers  at  judicial  sales,  904 
that  are  false,  905 
to'  what  they  must  refer,  902,  903 
representing  ho  defense  to  note,  1120 

note  as  made  for  value,  1124,  1125 
title  to  be  clear,  905 
retaining  land  and  refusing  to  pay  for  it,  1171 
seeing  another  making  costly  improvements,  10G8 
selecting  appraisers,  giving  directions  on  execution  sale,  1096, 1097 
selling  propcrt)',  and  receiving  price,  1181 
setting  up  title  in  support  of  tenants,  1187 
signing  deed,  supposing  it  to  be  lease,  1129 

and  delivering  instrument,  1147 
silently  admitting  title  in  another,  1101 
silence  at  trial  of  case,  903 

in  the  trial  of  a  cause,  951 
of  defendant  in  criminal  case,  957 
or  representations,  1303,  1304 
and  omission  to  assert  title,  1083 
standing  by  in  siJcncc,  illustration  of,  1065,  10G7,  1078 


are  to  pages.]  INDEX.  1513 

Equitable  estoppel  (continued). 

by  standing  by  and  failing  to  assert  claim,  1066 

permitting  sale  of  property  on  execution,  1189 
seeing  building  erected,  1068 
waiving  statutory  prerequisites,  941 
stating  that  a  note  is  all  right,  1121 
stipulations  in  a  suit,  939 
subsequent  ratification,  1211,  1214 

with  full  knowledge,  1215 
suing  out  writ  of  attachment  in  action  on  bond,  1188 
taking  issue  on  bad  plea,  945 

part  in  proceedings  in  another  state,  1186 
tender  of  money  in  court,  964,  965 

what  it  conclusively  admits,  964,  965 
transferring  note,  on  statement  that  it  is  valid,  1120 
treating  deed  as  valid,  from  contradicting  it,  1187 
trying  case  on  one  theory,  from  obtaining  reversal  on  another,  949 
by  voting  for  successful  candidate,  1167 
waiver  in  judicial  proceedings,  939,  952,  960,  951 
of  appraisement  at  judicial  sales,  962 
attorney  as  to  form  of  writ,  941 
breach  "of  condition,  1173,  1174 
conditions  in  a  policy,  1341 
defects  in  service,  942 

exemption  by  husband,  binding  on  family,  962 
forfeiture,  1332 

jury  trials  in  criminal  cases,  956 
objections  to  jurors  for  cause,  957 
payment  of  premium  in  cash,  1342 
proofs  of  loss,  1350 
protest  of  note,  955,  956 
statutory  and  constitutional  rights,  955,  956 
their  rights,  1323,  1324 
trial  by  jury,  955,  962 
waiving  irregularities  in  issue  of  process,  1189,  1190 
performance  of  contract,  1149 
security  for  costs,  946 
written  admissions  at  trial  of  cause,  948 
writing  message  on  telegraph-blank,  1154 
can  only  be  set  up  by  party  injured,  1116 
cannot  arise,  unless  evidence  discloses  default  or  fraud,  911 

be  limited  by  any  narrow  legal  definition,  875 
cases  illustrating  application  of  doctrine,  882,  893,  1064 
in  regai'd  to,  constantly  increasing,  863 
of,  as  to  certification  of  checks,  1326,  1380 
completing  verbal  contract  or  promise,  by,  1108 


1514  Index.  [References 

Equitable  estoppel  continued), 

concealment  of  claim  or  title,  906 

for  agent's  acts  within  scope  of  authority,  1332 

created  by  acts  of  party  or  agent,  1200 

statements  that  cannot  be  recalled  without  injury,  8G1,  862 
wrong  on  one  side  and  injury  on  the  other,  1223 
not  created  out  of  mere  falsehood,  unless  to  prevent  wrong,  912 
declaration  or  act  retracted  before  acted  on  does  not  create,  015 
declining  to  pay  without  giving  reason,  1350,  1351 
dedication  at  common  law,  the  application  of,  1281 
may  be  by  acts  in  nature  of,  1278 
consist  of  acts  that  are,  1283 
deed  by  grantor  without  title,  when  it  creates,  976 
delivering  receipt  without  receiving  premium,  J.o42,  1343 
depends  upon  circumstances  of  each  case,  876 
design  and  utility  of,  929 

to  deceive,  when  not  necessary  to,  897 
mislead  another,  creates,  1078 
designed  to  prevent  circuity  of  action,  911 
distinction  as  to  silence  and  participation,  1077,  1080 
between  legal  and  equitable,  869,  908 

this  and  common  law  estoppel,  1112 
in  operation  of,  and  the  law  merchant,  1114 
discharge  of  surety  b}'  acts  in  nature  of,  1223 
do  not  always  run  with  the  land,  1079 
doctrine  applied  to  dedication,  1278,  1290 

as  to  married  women's  contracts,  1233,  1234 

of  as  now  established,  868,  878 

as  to  representations  by  agents,  1304 

in  regard  to,  as  to  land,  866,  868 

followed  by  all  courts,  878,  879 
municipal  bonds,  1371,  1381 
Welland  Canal  v.  Hathaway,  885,  886 
of,  applies  to  cestui  que  trusts,  1225 
as  to  acquiescence,  1193 

applied  to  wills,  etc.,  1176,  1177 
dedication,  1286,  1288 
applies  to  highways,  streets,  etc.,  1277 
as  to  negotiable  paper,  1114 
effect  of,  when  properly  understood,  868 
founded  on  what  principles,  913 
how  applied,  as  to  representations,  903 
illustrated,  1179,  1180 

liberally  construed  for  suppression  of  fraud,  872 
U.  S.  supreme  court  as  to,  1336,  1339 
of  universal  application,  1116 


are  to  pages.}  INDEX.  1515 

Equitable  estoppel  {contimied). 
dread  of  this  class  of,  1115 
effect  of  certification  of  checks,  1329,  1330 
on  judgments,  861 

recitals  in  certificates  of  stock,  1325,  1326 
title  to  land,  1100 
effectual  in  courts  of  law  and  equity,  914 
elements  of,  when  to  be  stated  by  the  court,  1443,  1445 
enforced  by  all  courts,  873 
enforcement  of  doctrine  as  to,  1058,  1061 
entitled  to  fair  and  liberal  construction,  872 
essential  elements  of,  1098,  1099 
essentials  to  enforcement  of  doctrine  of,  906,  911 
examples  of,  907,  910,  918 
exclusive  warrant  for,  what  is,  885 
expulsion  of  tenant  puts  an  end  to,  997 
extent  of,  in  suing  for  proceeds  of  property  sold,  1183 
extending  time  of  payment  of  premium,  1355 
failing  to  cancel  policy  in  case  of  other  insurance,  1344 

exercise  an  election,  operates  as  an,  1173 
by  failing  to  make  election  within  reasonable  time,  1181 
rights  known  when  he  should,  914 
set  up  claim  for  mesne  profits,  1179 
for  protection  against  fraud,  872 
founded  on  strict  legal  rules,  870 
foundation  of  doctrine,  877,  1063 

"  truth  not  to  be  spoken  at  all  times,"  970,  971 
fraudulent  representations  of  agent,  1206,  1207 
froiri  alleging  things  contradictory,   1163 

setting  up  title  against  execution  purchaser,  when,  937 
fundamentals  on  which  founded,  864,  865 
fundamental  principles  upon  which  doctrine  based,  865 
general  rule  as  to,  886 
grounds  for  its  enforcement,  1061 

the  application  of,  1077 
of  enforcement  is  fraud,  actual  or  constructive,  1070 
grantee,  when  bound,  though  acting  officially,  1269 
how  made  applicable,  1441,  1449 
set  up,  1442 

they  affect  banks  and  their  customers,  1130 
operate  on  real  property,  1298 
ignorance  and  concealment  must  concur  to -create,  1071 
illegal  and  void  acts  do  not  create,  922 
illustration  of,  1364,  1365         ♦ 

as  applied  to  bills  and  notes,  1124 
to  principal  and  agent,  1200,  1226 


1516  Index.  [Beferences 

Equitable  estoppel  {continued). 

iinpeachal)le  transactions  rendered  valid  by,  1196 
implied  lien  of  vendor,  how  lost  by,  965,  966 
in  actions  for  recovery  of  land,  994 
case  of  a  parol  partition,  1290 

declarations  by  inventors,  932 
plurality  of  rights,  1178 
of  subsequent  patents,  932,  933 
unauthorized  subscription  to  stock,  1202,  1203 
of  Ins.  Co.  in  case  of  verbal  contracts  for  insurance,  1332 
waiver  of  conditions  by  agent,  1331,  1332 
forfeiture,  1174,  117G 
in  case  of  accounting  by  administrators,  1261 
administrators,  12G1,  12G3 
agreement  to  cancel  and  release  claims,  932 
confusion  of  goods,  932 
dedication,  bind  parties  and  privies,  1280 
doubt  as  to  power,  1310 
gross  negligence,  932 
ignorance  of  law,  932 

truth,  932 
infants,  1156 

and  married  women,  1076 
ratification  by  corporation,  1301,  1310 
secret  trust,  931 

void  and  voidable  contracts,  1150 
where  others  act  on  their  statements,  1303,  1304 
criminal  as  well  as  civil  cases,  9G5 
favor  of  assignee  of  judgment,  1119 
purdiaser  of  lease,  1284 
in  pais  by  acquiescence,  894,  895 
in  permitting  costly  structures  on  lands,  1304 

questions  of  boundarj'  apply  to  U.  S.,  1269,  1270 
of  corporation  in  regard  to  bills  of  lading,  1385,  1387 

contracts  ultra  vires,  1309,  1320 
renewals,  1340,  1341 
warehouse  receipts,  1387,  1388 
inclination  of  courts  to  extend,  1114 
instances  given  Ijy  Coke  of,  968 

of  in  regard  to  waiver,  1173,  1176 
insuring  vacant  premises,  1353 
intention  of  owner  as  to  dedication,  creates,  1285 

sufficient  to  create,  902 
interests  and  titles  that  inure  to  corjx)ration  by,  1322 
involve  questions  of  legal  ethics,  875 
of  party  to  set  up  in-egularities,  953,  954 


are  to  pages.]  INDEX.  1517 

Equitable  estoppel  (continued). 

issuing  a  policy  in  case  of  other  insurance,  1344 
judgment  creditor,  affected  by,  1066 
limitations  of,  878 

limited  within  what  bounds,  1114,  1115 
makes  principal  liable  for  misconduct  of  agent,  1204 
married  woman's  covenants,  when  they  operate  by,  1243 
estate  may  become  bound  by,  1246 
woman  may  bar  her  dower  by  acts  of,  1244,  1245 
women,  admissions  of,  when  acted  on,  1246,  1247 
declarations  of,  when,  1247,  1248 
maxims  applicable  to,  864,  865 
may  be  relied  on  in  evidence,  1441 

debar  truth  therefor  frequently  termed  odious,  868 
misleading  policy-holder  as  to  payment  of  premium,  1343,  1844 
misrepresentations  that  amount  to,  917 
motive  when  immaterial  to  the  creation  of,  881,  882 
municipal  corporations  as  to  bonds  of  ionajide  holder,  1371,  1381    ~ 
negotiable  bonds,  1370,  1371 
railway  aid  bonds,  1370,  1382 
assuming  control  of  a,street,  1369 
by  acts  w^ithout  seal,  1367 

contracts  of  committees,  1368,  1369 
laying  out  roads  and  bridges,  1369,  1370 
on  contracts  without  seal,  1383 
releasing  property  to  owner,  1384 
must  be  an  admission  intended  to  influence  one's  conduct,  919 
mutual,  921 

willful  representation  to  create,  912 
nature  of  waiver  that  amounts  to,  954 
negligently  allowing  one  to  claim  as  owner,  1103 
caring  for  property,  1130 

standing  by  and  allowing  another  to  contract,  1063 
negotiable  instruments  are  witliin  the  doctrine  of,  1113 
no  application  except  where  party  has  been  induced  to  act,  1115 

distinction  between  simple  contract  debt,  and  one  under  seal,  1114 

in  application  of,  between  law  and  equity,  874 
limitation  of  the  doctrine  in  equity,  898,  899 
rules  as  to  amount  of  proof  to  create,  1098 
none  where  both  parties  have  equal  knowledge,  919 

the  act  or  representation  is  made  afterwards,  926 
not  applied  like  those  by  record  and  deed,  1114 
available  in  favor  of  strangers,  1149 
extended  beyond  their  requirements,  919 
of  acceptor  to  dispute  drawer's  signature,  1132 

show  he  signed  without  consideration,  1134 


1518  Index.  [References 

Equitable  estoppel  (continued). 

of  administrator  allowing  parties  to  expend  money,  1263 
as  to  estates,  12G1 
making  private  sale,  1263 
on  ground  of  fraud,  negligence,  1098 
standing  by  at  sale  of  estate  property,  1104 
agent  to  claim  he  acted  for  himself,  1221,  1222 
alien  receiving  bequest,  to  avoid  tax  thereon,  1187 
an  officer  accepting  reduction  of  salary,  1198 
assignor  of  stock,  to  dispute  title  thereto,  1325 
attorney  at  execution  sale,  1263 
bank,  by  acts  of  officers,  1330 

by  ratification  of  unauthorized  acts,  1330,  1331 
certifying  checks,  1326 
to  deny  liability  for  fraud  of  cashier,  1330 
its  organization,  1308 
.broker  or  agent  as  against  principal,  1169 
cestui  que  trust,  to  impeach  payment  of  rent,  1226,  1227 

to  set  aside  sale,  1226 
common  carrier  to  deny  authority  of  agent,  1222 
co-obligors  from  claiming  as  sureties,  1224 
corporation  accepting  benefits  of  contract,  1316,  1317,  1319 
to  parties  contracting  with  them,  1321 
by  acquiescence  of  officers,  1323,  1324 
fraudulent  misrepresentations,  1389 
as  to  mortgage  made  by  agent,  1204 
acquiescing  in  construction  of  improvements,  1360,  1362 
as  to  trespasses  committed  by  agents,  1302 
holding  out  person  as  officer,  1302 
making  contracts,  to  deny  its  power,  1308 
to  deny  title  of  party  under  a  forged  transfer,  1325 
that  officers  are  legally  elected,  1308 
parties  are  stockholders,  1321 
dispute  party's  title  to  stock,  1326 
impeach  judgment  as  ultra  vires,  1360 
to  plead  ultra  vires,  1314,  1316 

against  its  debentures,  1317,  1319 
creditors  from  asserting  claim  on  stockholders,  1359 
corporations,  by  judgment  against,  1359 

acts  of  waiver  by  officers,  1331 
for  acts  of  de  facto  officers,  1306 
extension  of  doctrine  at  law,  1335 
for  fraudulent  acts  of  agents,  1302 
neglecting  statutory  requisites,  1306,  1307 
to  deny  validity  of  officer's  acts,  1306 
show  officers  illegally  elected,  1306 


are  to  pages.}  InDEX.  1519 

Equitable  estoppel  {continued). 

of  debtor,  to  taking  pid vantage  of  defenses,  1114 
dedication  once  made  and  accepted,  1283 
defendant,  to  question  sale  of  his  property,  937 
endorsee,  to  dispute  ability  of  antecedent  party,  1132,  1333 
endorser  of  blank  note,  1125 

waiving  protest,  1127 
firm  to  deny  power  of  partner,  1229 

grantee  in  possession  to  deny  delivery  of  deed,  1188,  1189 
grantor  adopting  signature  affixed  by  another,  1203 
guarantor,  extent  of,  1148,  1149 
grantor,  who  conveys  by  reference  to  map,  &c.,  1284 
heirs  who  stand  by  and  see  property  sold,  1080 
holder  misleading  surety,  1224,  1225 
husband  executing  deed  of  sejjaration,  1260 

permitting  wife  to  sell  personal  property,  1068 
importer  to  recover  on  grounds  different  from  those  in  protest,  948 
infant,  by  receiving  proceeds  of  sale,  1231,  1232 

representing  himself  as  of  age,  1252,  1255 
infants,  1242 

based  on  fraud,  1253,  1255 

doctrine  of  Roman  law  as  to,  1252,  1253 

and  maiTied  women,  1231,  1232,  1261 

based  on  fraud,  1232 
Ins.  Co.,  by  waiving  proofs  of  loss,  1348 

in  cases  of  preliminary  proofs,  what  meant  by,  1348 
where  agent  writes  ajiplication,  1335 
insured,  to  deny  legality  of  corporation,  1359 
judgment  creditor,  to  deny  existence  of  corporation,  1359 
landlord  defending  in  ejectment,  971,  973 

to  enforce  claim  for  rent,  1174 
legatee,  12G2 
lessee  to  dispute  title  of  assignee  of  lessor,  971 

plead  Avant  of  title  in  action  for  rent,  971 
lessor  from  setting  up  adverse  possession,  1291,  1296 
leaner  to  set  up  usury,  1151 
maker  of  accommodation  note,  1123,  1124 

notes  to  question  their  validity,  1172 
or  acceptor  of  negotiable  instruments,  1122 
man  to  deny  a  woman  is  his  wife,  936 

married  woman  allowing  husband  to  use  property,  1241,  1248,  1249 
borrowing  money,  1237 
by  acquiescence,  1238 

admissions  and  representations,  1250 
for  frauds  of  agent,  1239 
inducing  purchase  of  laud,  1243 


1520  Index.  [References 

Equitable  estoppel  (continued). 

of  married  woman  in  joining  certificate  in,  as  to  mortgage,  1237 
or  infant  to  claim  breacli  of  trust,  1225 
representing  herself  single,  1237,  1243 
to  enforce  equity  of  redemption,  1232 

use  her  covcture  for  fraud,  1238 
where  husband  acts  as  agent,  1240,  1241 
she  commits  fraud,  1 245 
employs  agent,  1240 
affirming  void  contracts,  1244 
allowing  sale  of  their  property,  1235 
basis  of,  1248,  1249 
by  ratification,  1238 
representations,  1246 
their  conduct,  1247 
waiver  of  her  rights,  1249,  1250 
disclaiming  title,  1237,  1250 
doctrine  in  regard  to,  1239,  1240 
from  controverting  facts,  1249 
how  affected  by  statute,  1233,  1235 
making  representations,  123G 
obtaining  advantages  by  fraud,  1236 
seeing  costly  expenditures  made,  1237,  1242 
under  statutes,  1238,  1239 
master,  by  representation  of  clerk,   1201 

member  of  mutual  insurance  company,  to  deny  incorporation,  1357' 
mortgagee  allowing  improvements  under  mortgagor,  1068 

property  to  be  sold  without  foreclosure,  1097 
purchase  of  property  without  objection,  1067 
(see  index  mortgages  for  further  application  of  this  doctrine) 
of  mortgagees,  to  deny  prior  encumbrances,  1147 

municipal  corporations  by  acts  of  officers,  1863,  1365 
allowing  expenditures,  1365 
by  acts  of  officers,  1308 
opening  streets,  1368 
officer's  acts  within  authority,  1368 
ratification,  1369 

of  contracts,  1367 
unauthorized  acts  of  parties,  1368 
for  acts  done  within  its  power,  1366 

informalities,  1366 
to  deny  party's  title,  1364 

validity  of  contracts,  1366 
recognizing  validity  of  bonds,  1367 
to  plead  illegality  as  to  defense,  1366 
where  officers  issue  license,  1366 


are  to  pages.]  InDEX.  1521 

Equitable  estoppel  (continued). 

of  obligor  from  disputing  title  of  goods  pledged,  938 
old,  by  becoming  merged  iu  new  corporation,  1321 
one  joint  owner  to  question  validity  of  sale,  1100,  1101 
partner  for  frauds  of  others,  1228 
paying  rent  to  deny  assignee's  tjtle,  1291 
owner  accepting  damages,  1288,  1289 

by  ratification  of  highway  proceedings,  1289 
petitioning  for  a  road,  1289 
standing  by,  seeing  money  expended,  1277 
to  question  dedication,  1288,  1289 

made  by  agent,  1289 
resist  taking  of  property  for  public  use,  1288,  1289 
owners,  which  show  intention  to  dedicate,  1286 
parties  agreeing  to  boundary  lines,  1272 
as  to  adverse  claims,  1291 
coming  in  under  tenant,  980 
deriving  title  by  descent  or  purchase,  977 
to  a  contract  before  incorporation,  1322 
award  by  parol  submission,  1291 
plead  ultra  vires,  1319,  1320 
set  up  adverse  possession,  1292,  1293 
who  are  silent  at  public  sales,  1075,  1076 
party  accepting  part,  giving  receipt  in  full,  1197,  1198 
principal  without  interest,  1198 
acting  under  mistake  of  law,  1 080 
after  discovery  of  fraud,  1180 

in  a  prospectus,  1194 
alleging  title  in  others,   1290,  1291 
as  to  correctness  of  a  boundary  line,  1270,  1271 
by  acquiescing,  acknowledging  title  of  another,  1200 
claiming  as  owner  against  officer  levying,  1191 
concealing  secret  rights,  1070 
erecting  house  on  lands  of  another,  973 

improvements  as  to  boundary  line,  1273 
failing  to  except  to  matters  in  court,  953 
from  impeaching  his  own  title,  938 
granting  an  easement  by  parol,  1277 
having  right  to  redeem,  1108,  1169 
making  paj^ment  on  architect's  certificate,  1991 
occupying  land  as  to  boundar}^,  1273 
procuring  passage  of  private  laws,  1198 
signing  piece  of  blank  paper,  1125 
recognizing  claim  or  lien  of  another,  1200 
renouncing  one  claim  to  settle  others,  1198 
standing  by  seeing  costly  improvements  made,  1200 
Vol.  I.— 96 


1522  Index.  [Ite/erejices 

Equitable  estoppel  (continued). 

of  party  taking  advantage  of  matters  admitted  at  trial,  943,  944 
to  an  award  by  receipting  for  part,  1198 
claim  by  adverse  possession,  1295 

forfeiture  of  lease,  1173 
deny  boundary  line  acquiesced  in,  1270 
debtor's  right  to  redeem,  1198 
right  to  make  levy,  937 
falsify  his  representations,  1115 
enforce  judgment  obtained  by  fraud,  938 
his  election,  1177,  1178 

illegal  contract  to  recover  consideration,  1150 
question  corporation's  title  to  property,  1360 
question  dedication,  1281 
mend  his  hold  after  once  pleading,  947,  949 
raising  questions  in  supreme  court  for  first  time,  953,  954 
set  up  legal  title  to  prevent  fraud,  872 
to  state  one  case  and  prove  another,  943 
who  accepts  policy  of  insurance,  1357 

acknowledges  receipt  of  property,  1191 
brings  up  partial  appeal,  953 
can  avoid  contract,  1170 
has  made  his  election,  1186 
employs  another  as  agent,  1214 
settles  disputed  boundary  line,  1270 
•  treats  contract  as  binding,  1194 
parties  to  legal  proceedings,  1179 
person  coming  in  as  lodger  or  servant,  973 
recognizing  agency  of  another,  1205 
to  deny  he  is  member  of  firm,  1227,  1228 

sot  up  outstanding  title,  1294 
who  can  avoid,  but  does  not,  1064 
silent  when  he  should  speak,  1064 
who  signs  firm  note,  1228 
persons  acting  as  coi-poration  to  deny  authority,  1321 
principal,  apply  in  cases  of  fraud  of  agents,  1205 
by  representations  of  agent,  1205,  1206 
failing  to  give  notice  of  tei'raination  of  agency,  1210 
inducing  another  to  act,  1210 
instituting  suit  on  acts  of  agent,  1219 
knowledge  of  facts  necessary,  1220 
from  repudiating  contract  for  fraud,  1205 
procuring  advances  from  factor,  1205 
ratifying  and  rejecting  part,  1203 
to  afiirm  and  reject  contract,  1202 
claim  he  is  surety,  1223 


are  to  pages.]  InDEX.,  1523 

Equitable  estoppel  (continued). 

of  principal  to  claim  relief  as  surety,  1135 

deny  authority  of  agent,  1205 
set  aside  settlement  of  agent,  1205 
when  representation  part  of  contract,  1202 
where  agent  exceeds  his  authority,  1205 
to  say  they  were  sureties,  1134  .     - 

purchaser  at  sheriff's  sale,  975 

railroad  company  to  deny  validity  of  contracts,  1384 
receiptor,  from  disputing  sheriff's  title,  936 
receivers  of  insolvent  corporations,  1359 
right  of  appeal,  941 

shareholders  acquiescing  in  illegal  proceedings,  1323  ' 

state  as  to  final  settlements  with  oflBcers,  1264,  1265 
by  ratification  of  otficial  acts,  1265 
in  matters  arising  from  contract,  1264,  1265 

regard  to  boundary  lines,  1275 
to  deny  acts  of  agents  or  officers,  1264,  1265 
surety  by  act  of  principal,  1223 

delivering  note  to  principal,  1124 
waiving  privilege,  1184 
induced  to  surrender  property,  1224 
on  bond  from  setting  up  mortgage,  1181 
to  deny  liability  on  bonds,  1137,  1147 

set  up  defense  personal  to  principal,  1116 
tax  collector  to  deny  county's  right  to  proceeds,  1171 
tenant  claiming  a  title  purchased  by  him,  1294 

depends  rather  on  legal  than  equitable  grounds,  979 

disputing  title  of  party,  972 

from  disputing  landlord's  title,  936 

denying  landlord's  title,  979 
to  claim  possession  against  1-andlord,  1292 

dispute  landlord's  title,  upon  what  dependent,  970,  971 
revoke  license  after  expenditure  of  money,  1107 
set  up  adverse  possession,  1293 

paramount  title  during  lease,  979 
adverse  claim  against  lessor,  1293 
and  privies  from  disputing  title  of  landlord,  972 
U.  S.  to  claim  title  to  property  fraudulently  obtained,  1265 
vendee  to  claim  by  adverse  possession,  1294,  1295 
refusing  to  accept  deed  on  specific  ground,  1169 
of  vendor  of  note  to  deny  signatures,  1125,  1126 

or  mechanic  from  setting  up  lien,  966,  967 

party  to  contract,  1149 
to  assert  his  implied  lien,  965,  966 
voter,  by  belonging  to  successful  party,  1166 


1524  Index.  [Ee/erencet 

Equitable  estoppel  (continued). 

of  widow,  by  stating  she  will  not  claim  dower,  1199 
ratifying  mortgage  by  payment,  1171 
sale  of  exempt  property,  1181 
wife,  by  husband  standing  silently  by  at  sale,  107G,  1077 
"  Omnii  ratihahitio  retrolrahitur  ct  mandato,  tfic,"  1211,  1215,1310 
on  ground  of  notice  to  agent,  1334: 

that  knowledge  of  agent  is  his,  1333 
maker  of  accommodation  note,  1120 
only  called  into  existence  to  prevent  wrong,  908 
operate  only  in  favor  of  those  who  arc  influenced,  950 

under  direction  of  court,  1446 
origin  of,  869 

•[iurely  equitable,  872 
party  need  not  know  that  his  representations  are  false,  900 
by  procuring  one  to  convey  property,  1081 
party  recognizing  title  of  one  under  whom  he  enters,  1295 
precludes  ownev  from  revoking  dedication,  1282 
prevents  illegal  title  by  adverse  possession,  1291,  1292,  1296 

infants  and  married  women  from  perpetrating  fraud,  1232 
parly  from  alleging  truth,  1119 
denial  of  agents  power,  1340 
fraud  and  falsehood,  1058 
taking  advantage  of  agents'  acts,  1340 
owner  from  contradicting  dedication,  1285 
party  from  revoking  dedication,  1281 
principal  from  ratifying  and  repudiating,  1220 
principal  must  disaiBrm  or  be  bound  by,  1216 
principle  of,  applicable  to  mechanics'  liens,  906 

when  applied  to  dedication,   1282 
principles  of,  801,  1409 

as  to  agency  on  what  founded,  1209,  1210 
on  what  founded,  1058 
upon  which  this  equitable  doctrine  is  founded,  1060,  1064 
prior  purchaser,  how  affected  by,  1066 
probably  existed  in  all  codes,   869 

procuring  officers  to  act,  from  denying  his  competency,  1188 
possession  may  be  acquired  so  as  to  create,  978 
qualification  of  doctrine  in  case  of  Freeman  v.  Cook,  880 
ratifying  acts  after  corporation  obtains  authority,  1311 

eale,  1389 
by  receiving  proceeds  of  a  judicial  sale,  1189,  1199 
receiving  proofs  of  loss,  without  objection,  1350. 

and  refusing  to  paj^  1349 
recognized  propositions  in  regard  to,  5,  6,  884,  887 
recognizing  a  policy  holder  after  forfeiture,  1353 


are  to  pages.]  InDEX.  1525 

Fouitable  estoppel  {continued). 

recognizing  signature  to  insurance  policies,  1214,   1215 

redress  wrongs  and  prevent  injury,  915 

refusing  payment  on  grounds  not  stated  at  time  of  loss,  1350 

to  take  part  in  an  appraisement,  1189,  1190 
relying  on  certificate  of  engineer,  933 
renders  corporation  responsible  for  agent's  fraud,  1340 
renewing  a  void  Ins.  policy,  1354 
repudiating  contract  of  Ins.  for  fraud,  1169,  1170 
requires  principal  to  affirm  entire  act  of  agent,  1204 
requisites  necessary  to  set  up  title  by,  1081 

of  to  affect  to  real  estate,  1073,  1074 

bind  infants  and  married  women,  1076 
to  prevent  owner  from  asserting  title,  1099 
of  waiver,  to  create,  954,  955 
resorted  to  as  shield,  but  never  as  a  sword,  914,  971 
rule  as  to  principal  and  agent,  1222 
established  in  Picard  i\  Sears,  876 
in  regard  to,  where  land  is  to  be  affected,  1073 
of,  that  party  must  be  consistent,  1165 
that  one  cannot  "  blow  hot  and  cold,"  1165 
rules  in  regard  to,  866 
selling  land  and  receiving  purchase  money,  1167 

property  and  suing  for  purchase  money,  1190 
silence  of  principal,  when  an,  1216,  1218 
when  it  postpones  a  title  by,  1077 
silently  permitting  others  to  part  with  money,  1193 
special  circumstances  creating,  1062 
standing  by  and  advising  sale,  1056,  1057 

allowing  a  contract  without  setting  up  claim,  1069 

one  to  treat  goods  as  his,  1101,  1102 
allow  purchaser  to  take  possession,  1079 
allowing  sale  of  property  under  execution,  930 
sanctioning  the  acquisition  of  land,  1069 
seeing  another  dealing  with  property,  1192 
sell  property,  1064 
conversion  of  property,  1079 
note  transferred,  1119 
one  making  valuable  improvements,  1099 
purchase  without  objection,  1079 
at  sale  and  making  representations,  1262 
statement  of  doctrine,  1340,  1341 

made  after  party  acted  is  not,  926,  927 
stockholder  standing  by  without  objecting,  1323,  1324 
subsequent  ratification,  doctrine  in  regard  to,  1213 
summary  of  principles  relating  to,  1108,  1111 


1526  Index.  [References 

Equitable  estoppel  {continued). 
tenant  bound  by,  979 

(see  index  for  landlord  and  tenant  for  further  application  of  this  doctrine) 
term  "willful"  defined  in  regard  to,  880 
that  amount  to  dedication,  1286 
to  affirm  and  disaffirm  acts  of  an  agent,  1310 
same  contract,  1150 
assert  claim  for  damages  for  breach  of  contract,  1182 

rights  imquestionably  valid,  1072 
bind  one,  must  be  guilty  of  fraud  or  gross  neglect,  1078 
"blow  hot  and  cold"  as  to  proofs,  1348 
claim  liens  or  equities  against  stockholders,  1307,  1308 
create,  act  must  have  influenced  party,  1072 
deny  benefit  of  loan  made  by  corjDoration,  1309 
corporate  liability,  1808 
one  registered  as,  is  a  shareholder,  1322 
payment  of  Ins.  premium,   1341 
sealed  instrument  to  be  his  deed,  1116 
recitals  in  stock  certificates,  1325,  1326 
the  existence  of  partnership,  1230 
validity  of  bills  of  lading,  1133,  1134 

the  validity  of  sale  made  by  another,  1100  ' 

what  one  has  said  or  done,  1064  * 

pleadings  in  case  admit,  939 
dispute  landlord's  title  during  time  of  possession,  970 

stockholder's  rights,  1307 
genuineness  of  drawer's  signature,  1133 
increase  capital  stock  of  corporation,  1313 
.  plead  limitations,  1351,  1352 

that  drawer  is  a  married  woman,  1133 
ultra  vires  against  lona  fide  purchasers,  1320 
present  same  matter  in  different  and  inconsistent  aspects,  1185 
prevent  enforcement  of  corporate  contract,  1308 

fraud,  931 
recover  penalty  after  granting  license,  1365 
revoke  license  and  retain  proceeds,  1366 
set  up  claim  against  honafide  purchasers,  1135 
plea  of  ^dtra  vires,  1314,  1316 
a  title  against  purchaser,  929 
sureties  who  rely  on  principal's  acts,  1137,  1147 
take  advantage  of  defects  made  in  survey,  1355 
transacting  business  before  legal  incorporation,  1308 
transcending  limitation  of  corporate  charter,  1309 
to  treat  contract  as  subsisting  and  void,  1164 
under  contract  signed  by  one  only,  1149 
to  deny  validity  of  securities  pledged,  1188 


are  to  pages.'l  InDEX.  1527 

Equitable  estoppel  (continued). 

waiver  by  attorney  to  objections,  941 

of  breach  of  conditions,  1346,  1348 
principles  in  regard  to,  940,  950 
waiving  tort  and  suing  in  assumpsit,  1179 
well  founded  when  confined  to  legitimate  purposes,  925 
were  originally  few  in  number,  870 
wbat  acts  and  representations  are,  1255,  1260 
is  sufficient  acquiescence  to  create,  1192 
knowledge  or  notice  necessary  to  create,  1194 
necessary  before  party  concluded  by,  887 

to  raise  an  admission  or  statement  to,  917 
proof  necessary  to  create,  1119 
requisite  to  affect  land  by,  1098 
when  a  fact  for  jury,  1444 

applicable  to  Jo«  a  ^^e  purchasers,  1081 
state,  1264,  1265 
United  States,  1263,  1264 
bars  widow's  claim  for  dower,  1177,  1178 
created  by  silence,  1062 
firm  and  firm  creditor  bound  by,  1231 
,  not  disregarded  by  courts  of  equity,  1077 

,    it  operates  against  state,  1152  5 

one  of  two  innocent  persons  must  suffer,  891 
party  will  be  affected  by,  1071,  1072 

postponed  in  equity  as  to  liis  rights,  1075 
silence  is  acquiescence,  1193 
there  can  be  none,  925 
they  apply  to  infants,  trustees,  etc.,  928 
arise,  1115 

exist  as  to  landlord  and  tenant,  975,  976 
postpone  judgment  lien,  1097 
well  founded,  they  prevent  injury,  1072 
where  acts  of  agent  are  openly  exercised,  1207 
„  agent  advertises  himself  as  such,  1208 

waives  conditions  of  policy,  1834 
individual  rights  have  been  acquired  by  dedication,  1286 
one  by  his  conduct  causes  another  to  act,  etc.,  876 

holds  out  party  as  agent,  1333 
owner  allows  another  to  pledge  stock,  1324,  1325 
party  has  several  remedies  for  same  wrong,  1178 
premises  are  let  by  an  unnamed  landlord,  973 
principal  holds  out  another  as  agent,  1208,  1333 
relation  of  lessor  and  lessee  exists,  973 
same  party  acts  as  agent  for  two,  934 
stock  is  wrongfully  issued,  1324 


1528  '  Index.  [liefercnas 

Equitable  estoppel  (continued). 

where  there  is  a  forged  endorsement,  1122,  1123 
whether  adnnssions  amount  to,  how  determined,  939 
withhoUling  notice  of.  um-ccorded  deed,  1082 
when  applied  to  landlord  and  tenant,  908 
why  courts  are  cautious  in  granting  relief  by,  1445 
so  teiTned,  805,  800 
they  were  pronounced  odious,  8Y1 
Equitable  relief 

against  judgments  at  law,  299 
Equitable  titles — 

actions  of  ejectment  on,  220 
judgments  in  ejectment  on,  220 
Equity— 

conclusiveness  of  decrees  in,  407,  4T8 
decree  in,  admissible  to  show  rem  ijisam,  408 
of  dismissal,  473 

when  may  be  plead  as  defense  in  another  state,  617 
when  concludes  parties  and  privies,  477 
do  not  form  exception  to  res  judicata,  408 
impeachment  of,  409 

in  personam  when  they  affect  real  estate,  408 
inquirable  into  for  jurisdiction,  408 
who  bound  by,  409 

dismissal  of  bill  brought  by  tax  payers,  472 
in  federal  court,  473,  474 

when  a  bar,  471 
without  prejudice,  471,  474 
creditor's  bill  in,  473 
libel  in  divorce  case,  471,  474 
injunction  in,  when  it  cannot  be  pleaded,  470 

perpetuated  by,  after  removal  of  case,  409 
may  compel  parties  to  execute  contract  in  other  jurisdictions,  016 

relieve  against  fraudulent  judgments,  299 
parties  to  bill  bound  by  matters  that  might  have  been  litigated,  477 
when  decrees  will  not  operate  i7i  personam,  408 
it  will  not  relieve  against  judgment,  402 
ojiinion  in,  will  be  used  to  aid  a  decree,  470 
will  not  aid  party  after  trial  at  law,  405 

re-investigate  matter  merged  in  judgment,  405,  467 
relieve  against  judgment  at  law,  405,  400 
V  review  decision  of  court  of  law  on  same  facts,  470 
Erasures— 

in  record,  23 
Erecting — 

expensive  improvements,  an  estoppel  to  deny  boundary  line,  1268 


are  to  pages.]  IndEX.  1529 

Erroneous — 

decision  of  appellate  court  binding,  118,  119 
decree  res  judicata,  313 

instructions  of  court  do  not  affect  judgment,  313 
judgment  binding  until  reversed,  534 
judgments  can  be  only  avoided  by  appellate  courts,  425 
Errors — 

and  mistakes  of  courts  do  not  affect  a  judgment,  312,  317 

in  judgments,  how  cured,  453,  454 
in  computation  of  amount  of  judgment  cannot  be  shown,  75,  76 

record  cannot  be  collaterally  taken  advantage  of,  60 
may  be  avoided  or  cured  by  estoppel,  950 

will  not  vitiate  judgments  of  courts  having  jurisdiction,  404,  405 
Essential — 

conditions,  by  which  plea  of  res  jiidicata  becomes  applicable,  102 
elements  of  valid  foreign  judgments,  in  rem  or  personam,  584,  585  \ 
Essentials — 

of  a  valid  dedication,  1279,  1280,  1285,  1286 
judgment  res  judicata,  328 
plea  of  equitable  estoppel,  1442 
to  make  estoppels  effectual  by  pleading,  1449  , 

the  plea  of  res  judicata,  85 
requisite  to  make  judgments  res  judicata,  38,  39 
render  judgment  conclusive,  313 
Estoppel- 
adopted  for  motives  of  public  policy,  7 
affecting  title  to  land  may  be  given  in  evidence,  1439 
against  estoppel  sets  the  matter  at  large,  1425,  1426 
apparent  on  record,  may  be  taken  advantage  of  by  demurrer,  1426 
apply  between  mortgagor  and  mortgagee,  975,  1008 
trustee  and  cestui  que  trust,  975,  1008 
to  leases  for  years,  835 

purchaser  from  tenant,  1008 
are  given  in  evidence  not  pleaded,  885,  886 
only  used  to  prevent  wrong  and  injury,  908 
sometimes  said  to  be  odious,  10 
as  effectual  in  courts  of  law  as  equity,  914 

to  title  to  laud,  available  in  actions  of  ejectment,  1448 
available  at  law  in  regard  to  land,  866,  868 

bars  truth  to  prevent  fraud  and  falsehood,  868  ^ 

between  landlord  and  tenant,  applies  to  vendor  and  vendee,  1010,  1011 

exist  when,  975,  976 
when  it  expires,  975,  976,  983,  984   "^ 
lessor  and  lessee  well  established,  987 
vendor  and  vendee,  mortgagor  and  mortgagee,  1000, 1002 
bind  parties  and  privies  in  blood,  law  and  estate,  14,  915 


1530  Index.  [Se/erencea 

Estoppel  (continued). 

burden  of  proof  on  party  relying  on,  481 
by  a  feoffment  in  ancient  times,  8G2 
deed,  707,  740 

administrator  and  privies  affected  by,  739,  740 
affects  purchaser  at  judicial  sale,  719,  729 
applicable  to  any  case  of  license,  739 

certificates  of  acknowledgment,  732,  735 
grantee  destroying  deed,  737 
party  contracting  to  sell  land,  737 
secret  trusts,  737 
written  contracts,  708 
applies  to  creditors  in  composition  proceedings,  735 

grantor  conveying  in  fraud  of  creditors,  737 
■where  party  prevents  performance  of  condition,  739 
as  regards  deeds-poll,  724,  727 
to  misnomer  of  persons,  711 
available  only  as  to  parties  and  privies,  713 
binding  wife  and  children,  727 
binds  party  claiming  under  one  bound,  720 
created  by  ratification,  729 
creates  title  by  estoppel,  712 
creditors  when  affected  by,  736 
declarations  of  parties  as,  729 
distinction  between  and  evidence,  712,  713 
do  not  affect  married  women,  742 
divest  estates,  713 

operate  except  as  to  parties  and  privies,  741,  742 
doctrine  as  to  after- acquired  title,  713 
in  regard  to  infants,  717,  718 
does  not  bind  persons  claiming  adversely,  741 
"Strangers,  741 
extend  to  strangers,  707 
effect  of,  713,  777 

admissions  in  deed,  722 
warranty  against  warranty,  722 
when  passing  after-acquired  title,  719 
where  truth  appears  in  it,  722 
on  parties  claiming  from  common  source,  728 
when  it  will  be  suppressed,  729 
ejectment  may  be  maintained  on,  736 
extends  to  persons  claiming  under  person  estopped,  712 
extraordinary  effect  of,  777 
fraud  which  vitiates,  735 
grantee,  when  bound  by,  736 
how  affected  by  fraud,  732,  735 


are  to  pages.']  INDEX.  1531 

Estoppel  {continued). 

by  deed,  how  made  available,  1437,  1438 
if  deed  not  aided  by,  of  no  effect,  713 
by  deed,  in  making  tax  returns,  708 

kinds  of  in  the  civil  law,  779,  780 
makes  certain  recitals  conclusive,  710 
must  be  mutual,  742,  743 

pleaded  where  there  is  an  opportunity,  1437 
reciprocal,  or  mutual,  713,  719 
nature  of,  707,  709,  714,  740 
none  by  warranty  against  warranty,  25 
in  collateral  actions,  713 
unless  it  is  reciprocal,  719 
when  interest  passes,  25 
not  applicable  to  legal  conclusions,  730 

regarded  as  definite  mode  of  transfer,  781 
of  party  who  enters  into  wrong  contract,  708 
sheriff"  making  his  return,  708 
warranty,  778,  779 
on  homestead  claim,  727 

one  of  several  joint  owners,  730 
parties  under  partition  proceedings,  730 
what  founded,  711 
ordinary  and  extraordinary  effect  of,  781 
particular  recitals  as,  711 
party  not  bound  cannot  take  advantage  of,  713 

signing  deed  under  fictitious  name,  708 
presumptions  against,  714 
prevents  denial  of  boundary,  730 

grantee  denying  grantor's  title,  738 
grantor  denying  any  interest,  718 

title,  718 
party  from  disputing  his  own  deed,  712 
privies  that  are  bound,  720 
purchaser  when  bound  by,  736 
recitals  (see  recitals;  ^qq  post,  title  Recitals). 
requirements  to  create,  714,  715 
rule  in  regard  to,  782 
vitiated  by  fraud,  735 
waiver  of  homestead  right  as,  728 
what  is  meant  by  the  doctrine  of,  738 
.    when  applicable  to  married  women,  731,  735 
equitable  rather  than  legal,  751 
fraud  vitiates,  721 
given  in  evidence,  effect  of,  1441 
grantor  affected  by,  712 


1532  Index.  [Referencea 

Estoppel  (continued). 

by  deed  when  it  does  not  apply,  709 

none  against  married  women,  715 
party  cannot  set  up  fraud  to  avoid,  721,  722 
where  both  parties  claim  under  same  grantor,  738 
who  bound  bj-,  720 
widow  when  affected  by,  740 
encouraging  another  to  purchase  land,  929 
judgment  at  law  available  in  equity,  108,  109 

based  on  maxim,  there  must  be  an  end  to  litigation,  8 
lease  run  with  land  and  bind  all  parties,  842 
recitals,  741,  777 

bind  all  parties  to  deed,  741 

distinction  between  general  and  special,  749 

doctrine  in  regard  to,  744,  747 

do  not  apply  to  mere  matters  of  description,  743 

extend  to  general  matters,  743 
effect  of,  how  restricted,  743 
if  made  to  influence  another,  binding,  747 
includes  consideration  in  England,  744 
of  delivery  of  deeds,  effect  of,  751 
execution  of  conveyances,  752 
liens  or  encumbrances  in  deeds,  750 
one  deed  in  another,  effect  of,  741 
particular  facts,  conclusive,  749 
the  existence  of  mortgage,  749 
voidable  deed,  effect  of,  749 
privies  that  are  bound  by,  741 
that  are  specific,  conclusive,  743,  754 
when  conclusive  against  grantor,  743 

it  applies,  742 
where  both  parties  claim  under  same  grantor,  752 
record,  17 

must  be  mutual,  397 

or  judgment  how  created,  43 

on  what  founded,  8 
when  equally  available  to  plaintiff  and  defendant,  97 
recognition  of  owner's  title,  1008 
cannot  arise  without  evidence  of  guilt  or  fraud,  911 

be  taken  by  inference,  must  be  relied  on  in  pleadings,  1441 
operate  after  estate  of  lessee  is  determined,  849 
cases  illustrating  doctrine  of,  882,  885 
certificate  of  acknowledgment  as,  731 

estate  conveyed  by  estoppel  becomes  estate  in  interest  a5  initio,  846 
created  by  accepting  lease,  though  party  fails  to  take  possession,  994 
judgment,  limitation  of,  280 


are  to  pages.-\  IndEX.  1533 

Estoppels  {continued). 

created  for  the  purpose  of  doing  justice,  866 
difficulty  in  ascertaining  existence  of,  866 
doctrine  of,  modified  by  courts  of  the  present  time,  12 
guarded  with  great  strictness,  10 
not  unwise  or  unreasonable,  7 
defined,  examjjles  of  estoppels,  2 
in  pais,  doctrine  in  regard  to,  861,  1409 
doctrine  of,  beneficial  when  properly  understood,  868 

cannot  be  limited  by  narrow  definition,  875 
founded  on  highest  principles  of  morality  and  justice,  869 
in  action  for  recovery  of  land  are  equitable,  not  legal,  994 
in  rem  subject  to  same  limitations  as  those  in  personam,  358 
in  the  early  history  of  the  law,  12 
involve  the  question  of  legal  ethics,  875 
give  rise  to  a  peculiar  kind  of  pleading,  14 
how  taken  advantage  of  at  law,  872 
they  should  be  considered,  869 
molded,  12 
in  pais,  aflFecting  title  to  land,  illustration  of,  1093,  1095 
applicable  to  whom,  1002 
are  generally  given  in  evidence,  1446 
as  effectual  as  deeds,  1091 
to  boundary  lines,  1275 

mercantile  transactions,  how  taken  advantage  of,  1446 
available  in  courts  of  law  and  equity,  1442,  1443 
bind  all  who  acquire  title  vrith  notice,  1095,  1096 
by  recognizing  title  of  another  to  land,  1091 

representations  to  induce  vroman  to  marry,  1091 
can  only  be  set  up  to  prevent  injustice,  1110,  1115 
how  made  available,  1441,  1449 
in  case  of  party  to  a  bill,  1446 

may  be  relied  on  in  evidence  without  pleading,  1441 
must  be  set  out  in  pleading,  1442 
prevents  party  from  setting  up  title  to  property,  1075 
when  well  founded,  1072 
why  called  equitable  estoppels,  866 
will  be  so  molded  as  to  prevent  fraud,  1054 
limited  to  points  actually  decided,  312 
matter  of,  when  well  pleaded,  1427 
may  arise  from  variety  of  facts,  866 

be  used  as  defense  against  party,  14 
waived  by  party,  915 
must  be  precisely  and  expressly  alleged  in  pleadings,  1441 
mutual-,  14,  850,  914,  915 
reciprocal  and  mutual,  14,  850,  914,  915 


1634  Index.  [Re/ereneea 

Estoppels  (continued). 

must  be  within  certain  principles,  14,  1449 
nature  and  definition  of,  1 
no  settled  or  fixed  rules  applicable  to,  875,  876 
none  without  proof  of  wrong  done  or  threatened,  910 
of  administrator  to  deny  recitals  in  record,  390 
an  issue  on  a  particular  point,  111 
judgment  extends  beyond  what  appears  on  face,  282 
to  every  fact  in  issue,  282,  283 
how  destroyed,  106 

includes  all  allegations  made  and  denied,  282,  283 
to  all  points  within  scope  of  record,  312 
what  it  covers,  110 

when  it  covers  the  whole  matter  in  issue,  245 
lien  holders  by  witnessing  subsequent  deeds,  etc.,  1043,  1046 
mortgagee  to  set  up  claim  to  property  sold,  1035 
mortgagor  encouraging  strangers  to  purchase,  1041 

giving  certificate  to  validity  of  mortgage,  1025,  1026 
party  denying  an  encumbrance  on  his  estate,  1036 

to  deny  validity  of  prior  mortgage,  1034,  1035 
tenant  absolute  so  long  as  he  remains  in  possession,  997 
by  assenting  to  lease  to  stranger,  1093 
equitable,  not  legal,  986 
pleading  by  way  of,  14,  1433 
presumed  to  have  existed  in  every  code,  8 
principles  applicable  to,  acknowledgments,  731,  735 
reason  why  it  must  be  certain  to  every  intent,  10 
requirements  in  pleading  b}'',  1436,  1437 
resorted  to  only  to  prevent  injustice,  914 
should  be  reciprocal,  483 

not  be  carried  further  than  necessary,  915 
strangers  cannot  take  advantage  of,   14 
technicality  of,  when  they  will  be  restrained,  11 
when  courts  of  law  will  disregard  the  principles  of,  10 
it  never  can  be  allowed,  10 
must  be  shown  by  reply,  1440 

shown  may  be  taken  advantage  of  without  pleading,  1418 
where  tenant  obtains  possession  on  faith  of  lease,  are  equitable,  994 
■whether  a  judgment  is  properly  so  termed,   9 
when  declared  odious,  868 

deemed  odious  nnder  the  earlier  practice,  849 
when  favored  in  courts  of  law,  11 
properly  understood  prevent  fraud  and  injustice,  11 
who  bound  by,  14 
Every — 

matter  which  might  have  been  embraced  in  the  issues  barred,  134 


are  to  pages.]  IndEX.  1635 

Every  (continued). 

one  bound  to  take  care  of  his  own  rights,  308 

point  pi-operly  connected  with  the  case  concluded  by  judgment,  131 
Eridence — 

admissible  to  aid  judgment  in  reiDlevin,  294 

limit  but  not  to  enlarge  a  record,  312 

decrees  in  chancery  as,  467,  478 

false  judgment  obtained  by,  valid,  307,  308 

in  aid  of  record,  to  what  it  should  be  confined,  290,  292 

judgment  rendered  on  insufBcient,  conclusive,  314,  315 
are  conclusive,  as  to  their  rendition,  307 

must  support  both  actions,  96 

necessary  to  create  an  equitable  estoppel,  871 

prevent  wife  from  controverting  mechanic's  lien,  1242,  1243 

no  general  rule  in  regard  to  aiding  record,  329 

of  facts,  party  is  precluded  from  proving,  waives  estoppel,  1428 

the  same  must  sustain  both  actions,  111 

required  to  contradict  recital  in  records  of  other  states,  665 

when  inadmissible  to  rebut  presumptions,  75 
Eviction — 

when  pleadable  in  bar,  1440 
Examination — 

waiver  of,  a  bar,  962 
Exceptio  rei  judicata — 

eflFect  of,  80 
Exceptio  res  judicata — 

how  produced,  75 
Exceptio — 

under  the  Roman  law,  76 
Exceptione — 

according  to  Qaius,  77 

classified,  76,  77 

rei  judicata  and  in  judicium  deducta,  77 
Exceptiones — 

introduction  of  in  the  Roman  law,  83 
Exceptions — 

to  the  conclusiveness  of  judgments,  24 

1st,  where  the  record  is  coram  non  judice,  24 

2nd,  where  the  truth  appears  in  the  same  record,  24 

3rd,  where  the  matter  alleged  is  consistent  with  the  record,  24 

4th,  where  the  allegations  of  the  record  a  re  uncertain,  24 

5th,  or  is  alleged  merely  by  way  of  supposal,  24 

6th,  if  not  traversable  or  material,  24 

7th,  must  be  reciprocal,  so  as  to  bind  both,  parties,  24 

to  the  conclusiveness  of  recitals  in  deeds,  759 
general  rule  as  to  recital  of  consideration,  760 


*1536  Index.  [References 

Exception  (continued). 

made  in  favor  of  counter-claims,  309 

to  rule  prohibiting  tenant  from  disputing  landlord's  titlCj  989,  990 
the  rule  of  conclusiveness  of  judgments,  134,  135 
Execuiiou — 

issuance  of,  when  it  bars  another  suit,  300 

of  a  lease  creates  reversion  by  estoppel  in  lessor,  845 
judgments  in  ejectment,  conclusive  effect  of,  353 
papers  without  reading  them,  conclusive,  1128,  1129 

stay  of,  eflFcct  of,  425 
Executor — 

after-acquired  title  of,  passes  by  estoppel,  792,  793 

cannot  question  recitals  in  deeds  made  by  him,  751 

settlement  of,  conclusive,  348 

when  estopped  from  disputing  widow's  right  to  dower,  857 
Exclusive — 

jurisdiction  of  federal  courts  in  bankruptcy,  285,  287 

warrant  for  an  estoppel,  885 
Exercise — 

of  powers  by  parties  in  behalf  of  a  corporation,  1306 
Existeuee  — 

of  corporation  cannot  be  collaterally  questioned,  1391 
Expeudiug — 

money  on  streets  prevents  city  denying  they  are  such,  1368,  1370 
Express  Covenant — 

in  lease,  effect  of,  838 
Expulsion — 

of  tenant  puts  an  end  to  the  estoppel,  997 

sentences  of,  conclusive,  509 
Extensive — 

effect  of  judgment  as  merger,  559,  567 
Extension — 

of  estoppels  in  favor  of  third  parties,  923 
Extent — 

of  an  estoppel  by  recital  of  facts  in  a  deed,  760 
estoppel  between  laudloid  and  tenant,  988 
estoppels  by  judgment,  481 
conclusiveness  of  judgments  in  partition,  305 
estoppel  of  former  adjudication,  328 

rule  estopping  parties  claiming  title  from  common  source,  978 
Extinguishment — 

of  cause  of  action,  by  judgment,  5G0 
Extracts— 

from  the  civil  law  in  regard  to  res  judicata,  83,  85 
Extraordinary — 

effect  of  estoppels  in  pais  as  to  real  and  personal  property,  1053 


are  to  pages.]  InDEX.  1637 

Extrinsic  Evidence  — 

when  necessary  to  make  judgment  available,  1416 
why  admitted  in  aid  of  a  record,  103 

F. 
Fact— 

of  acting  upon  an  act  or  admission  makes  it  conclusive,  889 
Facts — 

constituting  estoppel  in  pais,  when  they  must  be  pleaded, 
directly  decided,  cannot  be  again  litigated,  477 
giving  jurisdiction  to  inferior  courts  may  be  disproved,  406 
in  opposition  to  a  record  cannot  be  alleged,  1436 
jurisdictional,  must  be  shown  in  record  of  inferior  court,  401 
must  be  actually  passed  upon  to  make  judgment  conclusive,  30T 
of  which  judgments  are  conclusive,  204 
once  treated  cannot  be  relitigated,  311,  312 
only  as  to  jurisdiction  of  inferior  courts  can  be  examined,  407 
relied  on  as  an  estoppel  in  pais,  should  be  specially  pleaded,  1447 
should  be  substantially  the  same  to  create  a  bar,  101 
upon  which  equitable  estoppels  depend,  proved  by  oral  evidence,  871 
when  the  issue  is  single  or  joint,  merged  in  judgment,  237 
which  exist  on  record,  must  be  proved  by  the  record,  242 
within  the  conclusion  of  a  judgment,  237 
Failing — 

to  defend  estops  party  from  impeaching  judgment,  46 
demur  to  a  bad  plea  as  a  waiver,  944 
petition  as  a  waiver,  944 
disclose  prior  lieu,  when  a  waiver,  1044,  1045 
except  to  irregularities  in  a  trial,  951,  952 
object  to  confirmation  of  sale  aflBrms  it,  1190 

improper  testimony,  a  waiver,   951 
set  up  a  plea  iu  abatement  as  a  waiver,  945 
take  advantage  of  defects  in  judicial  proceedings,  945 
traverse  allegations  in  pleading  as  a  waiver,  944 
Failure — 

to  defend,  what  admitted  by,  48 
False — 

assertion,  when  party  forbidden  to  deny,  4 
representations  made  to  influence  the  conduct  of  another,  896 
of  an  agent,  when  binding  on  jirincipal,  1206 
partner,  when  binding  on  firm,  1228,  1229 
statements  as  estoppels,  926 
Falsehood — 

when  it  creates  an  estoppel,  905 

will  not  create  an  estoppel,  912 
Features — 

of  an  ancient  record,  19 
Vol.  L— 97 


1538  Index.  [References 

Federal  oonrts — 

.  follow  state  court  in  action  of  ejectment,  225 
are  they  foreign  or  domestic?  691,  697 
bound  by  judgments  of  state  courts,  108,  109 
decision  of  state  courts  binding  in,  684,  689 
rule  as  to  the  effect  of  th^  judgments,  697,  698 
Fee  simple- 
conveyances,  when  they  create  an  estoppel,  783 
title,  recital  of  estops  heirs  from  disputing  it,  755  ^ 

Femines  covert — 

doctrine  of  estoppel  as  applicable  to,  1231,  1260 
Findings — 

of  court,  when  it  has  jurisdiction,  68,  74 

jury,  when  necessary  io  create  equitable  estoppels,  1444 
Final- 
judgments  having  authority  of  res  jitdieata,  39,  40  ' 

use  of  as  defenses,  27 
settlement,  conclusive  effect  of,  392 
decree  on,  conclusive,  391 
principles  applicable  to,  392,  393 
when  conclusive  on  estate,  1264 
when  a  judgment  is,  61 
Finality — 

of  decrees  in  partition,  305 

judgments  of  appellate  courts,  120 

on  the  rights  of  parties,  117 
Filing— 

a  bill  of  injunction  waives  an  iiTCgularity,  1190 
motion,  waives  right  to  question  jurisdiction,  451 
Firm  — 

bound  by  estoppels  in  pais,  1227,  1231 

not  giving  notice  of  dissolution,  1229 
representations  of  a  partner,  though  false,  896 

one    partner,  though  false,  1228 
judgment  against  on  note,  conclusive  of  partnerehip,  231 
permitting  one  to  sign  its  name  to  note,  cannot  deny  it,  1228 
ratification  by  use  of  its  name  after  dissolution,  1229 
First- 
judgment  rendered  merges  cause  of  action,  126 
Forcible — 

entry  and  detainer,  judgment  conclusive  as  to  possession,  232 
Foreclosure — 

decree,  conclusiveness  of,  1021 
judgment  iu,  who  concluded  by,  205 
proceedings  bar  adverse  claims,  1022 


aretopage$.1  IlTDEX.  1639 

Foreign — 

attachment  partakes  of  proceedings  in  rem,  370,  371 
corporation,  effect  of  voluntary  appearance  by,  1701 

estopped  to  plead  statute  limitations,  1390 

question  validity  of  state  law,  1390,  1391 
divorces,  637,  656 

judgments,  affecting  the  marriage  status,  598,  699 
title  to  land,  597 
against  garnishee,  a  bar,  594 
American  doctrine  as  to,  594,  595 
based  upon  jurisdiction,  conclusive,  370,  371 
conclusive  in  actions  on  same  subject  matter,  589 
defenses  that  may  be  set  up  against,  588,  589 
defendant  may  show  want  of  service,  597 
doctrine  in  England  as  to,  590,  593 

regard  to,  591,  592 
effect  of  defective  proceedings,  588 

erroneous  construction  of  law,  590,  593 
when  they  come  incidentally  in  question,  595 
where  court  has  jurisdiction,  596 
enforcement  of,  in  courts  of  different  countries,  587 
impeachable  for  want  of  jurisdiction,  591 
in  chancery  on  dismissal,  when  conclnsive,  596 
in  personam,  conclusive  between  parties,  589,  590 

on  what  ground  may  be  disputed,  597 
requisites  to  validity,  598 
may  be  affected  by  showing  want  of  jurisdiction,  588 
merger  of  cause  of  action  by,  512,  587 

defense  in,  592 
must  be  conclusive  where  pronounced,  588 
nature  of  proceedings,"  371 
of  dismissal,  no  bar,  595 
operation  of  as  merger,  591 
pendency  of  appeal  on,  no  defense,  588 
prima  facie  evidence  to  sustain  action,  590 
proceeding  by,  359,  363 
rule  in  regard  to,  on  what  based,  591 
Forfeiture — 

for  non-payment  of  premium,  waiver  of  by  company,  1346 
of  charter  cannot  be  raised  in  collateral  proceeding,  1392 
only  raised  in  direct  action  by  state,  1392 
who  cannot  question,  1391 
waived  by  accepting  rent,  1173,  1174 
waiver  of  by  agent  of  insurance  company,  1332 
what  acts  by  insurance  companies  or  agents  will  waive,  1846 


1540  Index.  [He/erencei 

Forged — 

paper,  application  of  estoppels  to,  1130 
transfers  of  stock,  when  it  binds  company,  1325,  1326 
Form — 

of  juclgmcut  will  not  affect  its  conclusiveness,  280 
record,  17 
action  immaterial,  if  due  notice  given,  71 

to  res  judicata,  98 
conveyances  that  operate  as  estoppels,  783 
Former — 

acquittal,  common  law  doctrine  as  to,  486,  487 

constitutional  provisions  relating  to,  485 

for  a  murder  includes  lesser  offense,  498 

burglary  or  larceny,  effect  of,  497 

stealing,  effect  of,  491 

on  indictment  for  nmrder,  effect  of,  488 

insufficient  grounds,  497 
principle  in  regard  to,  485,  507 
principles  upon  which  doctrine  based,  487 
action  must  be  of  same  nature  and  effect,  105 
adjudication,  extent  of  as  a  bar,  328 

is  new  matter  which  should  be  pleaded  under  code,  1425 
must  be  for  same  matter  as  litigated  in  first,  328 
conviction  for  simple  or  petit  larceny,  effect  of,  494 

swindling,  494 
decision  conclusive  between  parties,  99 

acquittal  or  conviction,  evidence  admissible  to  identify  offense,  499 
for  greater  or  lesser  offense,  498 
how  decided,  whether  a  bar,  496 
must  be  set  out,  491 
must  be  specially  pJeaded,  498 
pleadable  in  bar,  491 
requisites  of  plea  of,  499 
test  of  ascertaining  whether  good  plea,  496 
when  conclusive  in  another  trial,  491 
without  judgment,  effect  of,  497 
judgment,  how  ascertained  to  be  a  bar,  112 
Foimdatiou — 

of  a  judgment  in  rem,  346 
estoppel  by  warranty,  805 

equitable  estoppels,  no  man  shall  take  advantage  of  his  own  wrong,  878 
estoppels,  10 

estoppel  between  landlord  and  tenant,  970,  971,  975,  980,  982,  986 
res  judicata,  133 
equitable  doctrine  of  election,  1161 


are  to  pages.]  InDEX.  1541 

Frand — 

action  for,  barred  by  judgment  on  note,  279 

actual  or  constructive,  basis  of  estoppels  in  jyais,  1070,  1073,  1078,  1079, 

1088,   1090 
as  defense  to  foreign  judgments  may  be  set  up  in  Iowa,  669 
and  judgments  of  other  states,  668,  675 
between  parties,  no  ground  for  impeaching  judgment,  453 
creates  estoppels  against  infants  or  married  women,  1232,  1233 
doctrine  as  to  kinds  which  will  vitiate  a  judgment,  453,  467 
of  equity  that  it  vitiates  judgments,  453 

in  Kentucky  as  to  foreign  judgments,   669 
effect  of  failure  to  plead,  276 

English  doctrine  as  to  pleading  against  foreign  judgments,  669 
estoppels  not  allowed  as  instruments  of,  925 
estoppel  of  infants  to  prevent  perpetration  of,  1253,  1254 
for  which  court  of  equity  will  set  aside  judgment,  460 
how  it  alFects  foreign  judgments,  582 
in  concealment  of  prior  liens  creates  an  estoppel,  1047 

judgments  of  other  states,  when  relievable  in  equity,  671,  67? 
obtaining  service,  must  be  pleaded,  547,  549 
organization  of  corporation,  when  no  defense  by  debtor,  1898 
judgment  cannot  be  overthrown  for,  298 

in  assumpsit.,  when  conclusive  on  questions  of,  271 
when  res  judicata  as  to,  458 
kinds  of,  that  will  avoid  decree  or  judgment,  476 
may  be  ground  for  enjoining  judgments  of  other  states,  671 
mortgagor  when  estopped  from  setting  up,  1031 
must  be  actual  and  positive  to  impeach  judgment,  454 
clearly  established  to  set  aside  judgment,  413 
not  good  defense  to  action  on  judgment  of  sister  states,  671,  672 
or  deception  practiced  on  party,  when  it  will  avoid  judgment,  460 

when  they  create  an  estopiDel,  905,  906 
party  only  relievable  in  equity  for,  299 

prevented  from  having  trial  for,  avoids  judgment,  455 
what,  strangers  are  allowed  to  impeach  judgment  for,  452 
strangers  may  impeach  judgment  for,  412 
that  will  vitiate  a  deed,  735 

to  impeach  judgment  must  be  extrinsic  to  merits,  453,  455 
vitiates  judgments,  256 

waiver  of  by  party,  estops  him  from  taking  advantage  of  it,  1171 
what  is  meant  by,  as  ground  for  setting  aside  decree,  477 
when  merged  in  judgment,  458 

party  estopped  from  rescinding  on  account  of,  1180,  1181 
it  will  not  vitiate  the  effect  of  a  judgment,  459 
ground  for  impeaching  probate  proceedings,  394 
"will  vitiate  a  judgment  in  rem,  358 


1542  Index.  [References 

Fraud  nlent — 

concealment  of  title  an  estoppel,  1084 

conduct,  basis  of  equitable  estoppel,  862 

conveyances  bind  parties  and  privies,  735 

misrejiresentations  by  agent,  when  company  cannot  deny,  1389 

proceedings  prior  to  judgment  which  will  avoid,  1456 
.  satisfaction  of  mortgage  cannot  be  taken  advantage  of,  1049 
Fandamcntal — 

principle  in  regard  to  conclusiveness  of  judgments,  109 
of  equitable  estoppels,  865,  866,  878 

rule  requiring  notice  to  party,  51 

of  the  doctrine  of  estoppels  in  pais,  864,  865 
Future — 

litigation,  judgments  conclusive  in,  when  for  same  cause,  282 

G. 
Gaius — 

classification  of  actions,  29 
definition  of  an  estoppel,  1,  13 
exceptions,  76 
Gates  T.  Preston- 
doctrine  of,  ends  litigation,  265,  275 

questioned  in  other  states,  264,  269 
Garnishee — 

concluded  by  judgment  against,  366,  867 
his  liability  as  to  judgment,  369,  370 
judgment  against  affects  only  parties  and  privies,  365 
conclusiveness  of,  365 
conclusive  on  other  creditors,  562  . 
res  judicata,  365,  366 
payment  by,  effectual  as  defense,  369 
protected  by  judgment,  364 
Garnishment — 

distinction  between  and  attachment,  363,  364 
in  the  nature  of  proceedings  in  rem,  363,  364 
General — 

covenant  in  a  deed  of  warranty,  effect  of,  791 

damages,  recovery  of,  when  a  bar,  288,  289 

issue,  judgments  in  actions  on,  plea  of,  325 

nature  of  equitable  estoppels,  6 

principle  as  to  judgments  of  courts  of  competent  jurisdiction,  308 

principles  applicable  to  estoppels  by  deed,  707,  808 

in  regard  to  superior  and  inferior  jurisdiction,  407,  412 
rule  as  to  estoppels  by  judgment,  481,  482 
merger,  278 
pleading  estoppels  in  pais,  1448 


are  to  pages.]  INDEX.  1543 

General  (continued). 

rule  in  regard  to  election,  1161 

mutuality  of  estoppels,  146 
verdict,  judgment  on,  effect  of,  244 
words  do  not  estop,  742 
Gifts— 

and  voluntary  conveyances  by  husband,  effect  of,  736 
Goods — 

sold,  judgment  in  action  for,  wlien  conclusive  of  fraud,  231 
Grading — 

streets,  when  party  cannot  deny  city's  power,  1361,  1362 
"Grant" 

"  bargain"  and  "  sale,"  effect  of  words  as  an  estoppel,  815 
of  j)robate  conclusive  against  the  world,  375,  376 
Grantee — 

destroying  his  deed  estopped  from  setting  it  up,  737 
entering  into  possession  estopped  to  deny  grantor's  title,  1010 
estopped  by  recital  in  his  deed,  749,  750 

to  deny  that  he  granted  the  estate  conveyed,  1007 
in  a  deed  estops  his  representatives  also,  736 
may  deny  seizin  of  grantor,  1012 
purchaser  from,  bound  by  same  estoppel,  736 
recovering  damages  for  breach  of  covenant  waives  estoppel,  819 
second,  entitled  to  benefit  of  title  by  estoppel,  793,  794 
■when  bound  by  deeds-poll,  723 

estopped  to  deny  widow's  right  to  dower,  855 

set  up  title,  1079 
not  estopped  to  show  want  of  title  in  grantor,  738,  820 
and  all  claiming  under  bound  by  general  covenant  of  warranty,  791,  793 
those  claiming  under  them  estopped,  737 
Granting — 

letters  on  estate  of  living  person,  void,  51 
Grantor — 

acting  officially,  when  not  estopped,  751 
bound  by  boundary  line  settled  as  trustee,  1269 

signature  of  another  if  ho  adopts  it,  711 
by  deeds-poll  estopped  to  deny  title  of  his  grantee,  1007 
cannot  claim  any  interest  adverse  to  his  covenant,  814 

deny  title  of  his  grantee,  711 
conveyance  by  warranty  of  defective  title,  779 
conveying  absolute  title  binds  his  future  estate  by  estoppel,  782 

property  in  fraud  of  grantee,  815 
estopped  by  deed  from  denying  he  had  no  title,  751 
deeds-poll,  723 
to  deny  covenant  of  grantee,  809 
deed  inoperative,  719 


1544  Index.  [lie/erences 

Grautor  (continued). 

estoppel  to  deny  that  he  had  any  interest  in  the  land,  718 

who  expects  to  obtain  title,  estopped,  737 

and  privies  when  estopped  from  denying  seizin,  783 

after-acquired  title  of,  when  it  inures  to  grantee,  785 

passes  by  estoppel,  777,  778 
Grounds — 

for  applying  estoppels  in  pais,  1077 

on  which  privies  are  estopped  by  former  adjudication,  1426 
Guardian — 

appointment  of,  conclusive,  348 

■necessary  in  proceedings  against  infants,  179,  181 

not  personally  bound,  94: 

settlement  of,  conclusive,  348 

when  estopped  by  recitals  in  deed,  755 

affected  by  estoppels  in  pais,  928 
Guardians' — 

courts,  proceedings  of  are  in  rem,  348 
Guardianship- 
letters  of,  conclusive  effect  of,  376,  377 
Guarantor — 

estopped  by  consenting  to  delay,  1131,  1132 

of  dividends,  when  estopped  from  denying  liability,  1407 

■when  estopped  from  denying  his  liability,  1224,  1225 

H. 
Heir- 
assenting  to  void  decree,  estopped,  1094 
cannot  set  up  subsequent  title  against  ancestor's  warranty,  818 

take  under  and  in  hostilitj'.to  will,  756 
estopped  by  standing  by,  and  receiviug  proceeds  of  sale,  1080 

to  deny  seizin  of  his  father's  lands,  851 
of  grantor,  when  estopped  to  set  up  after-acquired  title,  792,  814 
or  devisee,  judgment  against  bars  action  against  executor,  187 
taking  letters,  cannot  question  validity^  of  probate,  338 
when  he  cannot  deny  possession  of  his  ancestor,  978 
release  by,  when  it  passes  after-acquired  title,  791 
Heirs- 
accepting  proceeds  of  sale  estopped  to  question  title,  910 
are  privies  when  they  claim  through  ancestor,  IGO 
estopped  from  taking  advantage  of  secret  equities,  1100 
when  and  when  not  bound  by  estoppels  in  leases,  842,  843 
estopped  by  acquiescence,  1227 
not  bound  but  may  take  advantage  of  estoppels,  578 
History— 

of  the  doctrine  of  res  judicata,  77,  96 


are  to  pages.]  InDEX.  1645 

Holding — 

one's  self  out  as  partner,  estoppel  by,  1227 

party  out  as  officer  or  agent,  binds  corporation,  1302 
Homestead — 

deed  of,  when  it  creates  an  estoppel,  729 

doctrine  as  to,  in  Georgia,  727 

failing  to  claim,  effect  of,  479 

lost  by  acceptance  of  surplus  proceeds,  1067 

recital  of  in  deed,  effect  of,  727 

right  lost  by  decree  of  foreclosure,  1021 

■when  grantor  estopped  from  setting  up,  727 

married  woman  estopped  from  claiming,  1237,  1238 
■wife  and  children  cannot  claim  as  against  deed,  727 
How— 

an  estoppel  is  to  be  made  available,  1400,  1449 

jurisdiction  is  obtained,  68,  74 

matters  in  issue  determined,  553,  559 

may  be  brought  within  the  estoppel  of  judgment,  96 

to  ascertain  what  admissions  are  several  and  distinct,  254 
when  second  action  is  the  same,  96 
whether  a  judgment  is  an  estoppel,  237 

res  judicata  was  made  available  in  ancient  times,  77,  96 
Husband— 

aiding  sale  of  wife's  property  cannot  claim  title,  890 

conveying  wife's  estate,  passes  it  by  estoppel,  818 

effect  of  standing  by  and  seeing  wife  sell  property,  1068,  1076,  1077 

estoppel  of,  by  recognition  of  wife's  title  to  property,  907 

may  be  bound  by  judgment  against  wife,  160 

permitting  wife  to  hold  herself  out  as  owner  of  property,  1052 

present  when  wife  executes  mortgage,  cannot  question  title,  1051^  1052 

though  infant,  may  be  estopped  by  acquiescence,  1260 

when  bound  by  allowing  wife  to  dispose  of  his  property,  1051,  1052 
estopped  from  claiming  interest  in  wife's  estate,  1260 


I. 

Identity — 

of  causes  being  established  how  estoppels  arise,  103 
first  and  second  actions,  how  detennined,  330 
parties,  88 

and  of  cause,  shown  by  parol  evidence,  234,  235 
Ignorance — 

as  to  title,  will  not  avoid  estoppel  in  j)ais,  899 
of  true  state  of  title  to  create  an  estoppel,   1085 

truth  will  not  avoid  estoppels,  1087 
will  not  avoid  equitable  estoppel,  1037     . 


1546  Index.  [Be/ereneta 

Ille??al— 

demands,  payment  of,  an  estoppel,  1183 
Illegality— 

of  contract  when  state  cannot  deny,  1152 
Illinois — 

doctrine,  in  regard  to  splitting  actions,  253,  254 
Illustration — 

of  application  of  estoppels  in  pais,  884,  885,  887,  888 
estoppel  to  deeds-poll,  725,  726 
conclusive  judgments,  136 

doctrine  of  equitable  estoppels  on  judgments,  336,  843 
estoppel  by  acceptance  of  rent,  GGO,  670 

in  pais  affecting  title  to  land,  1064,  1067 
affecting  land,  1091,  1095 
estoppels,  2 

by  acquiescence,  894,  895 
conduct,  890,  891,  894 
judgment  rendered  after  refusing  party  a  hearing,  110 
rule  no  one  be  punished  twice  for  same  offense,  501,  506 
same  matters  in  controversy,  97 
what  matters  were  in  issue,  553,  559 
doctrine  of  estoppels,  13 

res  judicata,  289,  241 
estoppel  by  representations,  904,  905 
judgments  as  merger,  262,  264 
void  and  voidable  judgments,  505,  506 
Immaterial — 

whether  foreign  judgments  are  of  condemnation  or  acquittal,  574,  582 
Immateriality — 

of  mode  of  bringing  matters  before  court,  136 
ttoipeachable — 

transactions  rendered  valid,  by  ratification,  1196,  1197 

acquiescence,  1196,  1197 
Impeaching — 

judgment  for  fraud,  455,  467 

judgments  collaterally,  doctrine  of  U.  S.  supreme  court,  426,  446 
Impeachment — 

of  awards,  530,  531 

foreign  judgments,  591,  592 
Implied— 

lien  of  vendor,  when  waived,  965,  966 
warranty  which  works  an  estoppel,  730 
Importance — 

of  estoppels,  19,  20 

as  affecting  property,  1058 
following  precedents,  116 


are  to  pages.}  IndEX.  1547 

Impossible — 

things  in  judgment,  void,  61 
Inadvertence — 

no  ground  for  setting  aside  judgments,  125 
Incidental — 

matters  arising  not  merged  in  judgment,  477 
Inconsistent — 

matters  cannot  be  maintained,  535 

plea  of,  how  judgment  aflFected  by,  336 
Indemnitors — 

how  affected  by  judgments  against  principals,  169,  178 
Indenture — 

acceptance  of,  binds  grantee,  724 

of  lease,  works  an  estoppel,  841 

doctrine  in  regard  to,  724,  726 
Indispensable — 

conditions  of  the  plea  of  res  judicata^  85 
Indivisible — 

causes  of  action,  248,  256 
Indorser — 

estopped  from  disputing  handwriting  of  parties,  1132,  1133 

estoppel  of,  by  waiving  demand  of  payment,  1127,  1128 

may  avail  himself  of  an  estoppel,  1124,  1125 

of  negotiable  note,  when  estopped,  1124 

paper,  estopped  from  pleading  defenses,  1127 
of  note  with  blank  date,  estoppel  of,  1125 
Inducing — 

another  to  alter  his  position,  estoppel  in  pais,  884,  885,  887,  888 
injuriously,  2 

one  to  sell  woman  goods,  representing  her  as  wife,  917,  918 
Infant- 
acquiescence  of,  when  sufficient  to  create  an  estoppel,  1258 

acts  or  declarations  of,  when  an  estoppel,  1258 

election  by,  when  an  estoppel,  1258 

judgments,  when  void  as  to,  180 

representing  himself  to  be  of  age,  when  estopped,  1252 

when  not  estopped  to  dispute  landlord's  title,  999 

acts  of,  may  create  an  estoppel  to  prevent  fraud,  1232 
ratification  of,  when  an  estoppel,  1257 

affected  by  equitable  estoppels,  928 

answerable  for  fraud,  1253,  1254 

bound  by  concealing  secret  title,  1076 
judgments,  178,  180 

doctrine  of  civil  law  in  regard  to,  1252,  1253 

judgment  against  guardian  of,  binding,  178,  179 

not  allowed  to  contract  so  as  to  injure  others,  1232 


1548  Index.  [References 

Infant  (continued). 

not  bound  by  recitals,  758 

estopped  by  deed,  713,  717,  834 

rule  in  regard  to  application  of  estoppels  to,  1242 

when  affected  by  estoppels  in  pais,  1070,  1077 
bound  by  estoppels  in  pais,  1232,  1260 
estopped  by  standing  by,  1257,  1258 
Inferior  Courts — 

acts  of,  when  and  when  not  valid,  406 

couclusiveness  of  judgments  iu,  480 

judgments  of,  conclusive  within  jurisdiction,  376,  877 
questionable  for  jurisdiction,  406 

limited  to  powers  within  jurisdiction,  376 

proceedings  of,  when  not  affected  by  errors,  405 
Inferior  Tribunals — 

judgments  of  in  other  states,  613 
Inflexibility — 

of  the  rule  of  res  judicata,  113 
Injunction — 

decision  on  application,  when  conclusive,  139 

decree  for,  when  silent  as  to  damages,  effect  of,  311 

in  chancery,  effect  of,  467,  470 
Injury— 

when  judgment,  bar  to  another  action  for,  256 
Innocent — 

purchasers  protected  by  estoppels  against  owner,  1102 
Inquiry— 

into  jurisdiction  admissible  in  judgments  of  other  states,  601,  603 
In  rem — 

definition  and  derivation  of  term,  344,  345 

foreign  judgments  in,  doctrine  and  principles  applicable,  671,  703 

illustrations  of  proceedings  in,  346,  347 

judgment  concludes  the  whole  world,  347,  348 

judgments  in,  344,  345 

jurisdiction  in  cases  of,  65 

nature  and  effect  of  judgment,  344,  390 

proceedings  in,  347 

what  proceedings  are,  347,  349 
Instalment — 

judgment  for,  effect  of,  327 
Instances — 

of  cases  where  tenant  can  deny  landlord's  title,  984,  985 
equitable  estoppels,  3,  5 

estoppel  in  x>ais,  by  waiver  in  judicial  proceedings,  943,  946 
fraud  in  judgment  which  equity  relieve  against,  456 
void  judgments,  52,  53 


are  to  pages.]  InDEX.  1549 

Instigator — 

of  legal  proceedings,  when  bound,  167,  168 
Institution — 

of  suit  by  principal,  ratifies  act  of  agent,  1219 
Instruments— 

not  under  seal,  cannot  be  pleaded  as  estoppels,  1439 
Insurance — 

circulars  and  advertisements,  when  estoppels  tn  pais,  923,  924 
company,  agents  of,  may  waive  conditions  of  policy,  1834 

bound  by  accepting  assessments  after  forfeiture,  1358 
premium  with  knowledge,  1354 
knowledge  of  prior  insurance,  1356 
acts  of  parties  held  out  as  agents,  1333 

or  knowledge  of  oiEcers,  1353 
agent's  knowledge  as  to  defects  in  title,  1341,  1342 
where  he  neglects  his  duties,  1357 
inspection  of  property,  1355 
neglecting  to  note  additional  insurance,  1358 
failure  to  indorse  additional  insurance  on  policy,  1382 
knowledge  of  agent,  1333,  1334 
negot.iildons  of  agent,  1340,  1341 
receipt  of  proofs  without  objection,  1349 
recognition  of  policy  after  forfeiture,  1358 
verbal  contract  to  insure,  1332 
waiver  of  condition  by  agent,  1347,  1348 

in  receipt  of  premium  by  agent,  1334 
if  agent  delivers  policy  without  payment,  1342,  1343 
where  agent  knows  of  oth^r  insurance,  1344  1351 
cannot  be  permitted  to  escape  from  bad  contract,  1157 
declining  to  pay  on  one  ground,  cannot  set  up  another,  1350 

without  any  reason,  estopped,  1351,  1352 
doctrine  of  U.  S.  supreme  court  as  to  estoppel  of,  1336,  1339 
judgment  against  one  may  bind  several,  168 
knowledge  of  agent,  knowledge  of  company,  1334 
estopped  by  receiving  premium  after  forfeiture,  1355 
renewal  of  policy,   1354 
•  waiver  in  regard  to  proofs,  1348 

from  taking  advantage  of  agent's  acts,  1355 
may  waive  benefits  of  conditions,  1350 
must  exercise  good  faith  as  to  proofs  of  loss,  1349,  1350 
to  claim  forfeiture  for  non-payment  of  premium,  1346 
rejecting  proofs  on  one  ground,  cannot  set  up  another,  1348 
when  estopped  from  denying  payment  of  premium,  1341 
companies  bound  by  acts  of  agents,  etc.,  1331,  1359 
directors,  1353 


1560  Index.  [Ue/erences 

Insurance  (continued). 

companies  cannot  "  blow  hot  and  cold  "  as  to  proofs  of  loss,  1348,  1350 

extension  of  equitable  estoppels  in  cases  of,  1 335 
Intention — 

estoppels  founded  upon  and  limited  by,  762,  773 

of  grantor  when  it  creates  an  estoppel,  782,  785 

to  deceive  not  necessary  to  an  estopijel,  897,  899,  912 
dedicate,  necessary  at  common  law,  1286 

when  immaterial  to  an  estoppel  in  pais,  1086,  1087 
Interest — 

after-acquired,  when  it  passes  by  deed,  781,  782 

cannot  be  recovered  when  principal  cannot,  91 

judgment  for,  conclusive  in  action  on  bond,  231 

when  it  accrues,  feeds  estoppel  of  lease,  834 

where  it  passes  by  deed,  no  estoppel,  781 
Interlineation — 

of  record,  23 
Intervener — 

dismissing  case,  when  not  conclusive,  332 
Inventors — 

estoppels  in  pais  operate  for  and  against,  932,  933 
Iowa — 

conclusiveness  of  judgments  in  ejectment  in,  221 
Irrebuttable — 

presumptions  as  to  judgments,  75 
Irregularities — 

cannot  affect  estopjiel  of  judgment,  316 

be  inquired  into  in  collateral  proceedings,  58 

how  taken  advantage  of,  58 

in  judgments,  63,  64 

confessed,  taken  advantage  of,  47 

where  court  has  jurisdiction,  no  efifect,  58 
Irregularity — 

may  be  waived,  nullity  cannot,  64 

and  nullity,  distinction  between,  58 
Irrevocable — 

confirmations,  recitals  that  are,  749 
Irrevocability —  ' 

of  admissions,  1284 
Issuance — 

of  execution,  when  it  creates  an  estoppel,  300 
Issue — 

matters  in,  how  ascertained,  553,  559 

of  fact,  judgment  on,  conclusive  without  granting  relief,  233 
Issues — 

must  be  false,  to  render  judgment  fraudulent,  463 


are  to  pages.]  INDEX.  1551 

Issues  (continued). 

may  be  shown  by  evidence,  24 

not  an  action,  26 

once  tried,  are  concluded,  98 

J. 
Jeopardy — 

constitutional  provisions  in  regard  to,  485 
person  once  placed  on  trial  is  in,  492 
principles  applicable  to,  491,  495 
what  is,  491 
Joining  — 

issue,  and  not  demurring  when  it  waives  an  estoppel,  1441 
Judge's — 

errors  or  mistakes  do  not  aifect  judgments,  312 
Judgments — 

a  bar  when  the  same  matter  directly  in  question,  107 

acceptance  of,  as  a  merger,  560 

acquiesced  in,  conclusive,  341 

adjudicating  questions  of  title,  conclusive,  294 

admissible  between  same  jiarties,  etc.,  1420 

admissibility  of,  depends  upon  whether  questions  are  same,  258 

admissible  to  establish  its  existence,  when  no  estoppel,  334 

against  administrator  as  to  title,  binds  heirs,  180 

assignor,  binds  the  assignee,  203 

bailor  is  a  bar  against  the  bailee,  214 

bankrupt  failing  to  plead  discharge,  conclusive,  186 

church,  binding  on  members,  166 

city,  a  merger,  551 

county,  etc.,  binds  citizens,  166 

corporation,  binding  on  stockholders,  164,  166,  1360 

covenantee,  when  it  binds  covenantor,  158 

defendant  on  note,  bars  action  for  fraud  in  obtaining,  279 

executor  or  administrator  by  default,  181 

a  garnishee,  365 

garnishee,  cannot  be  litigated  by  another  creditor,  562 

guardians,  etc.,  conclusive  on  what  parties,  178 

heir,  conclusive,  215 

or  devisee,  bar  against  executor,  153 
when  a  bar,  187 

infants  and  minors,  179,  180 

in  verdict,  181  ' 

intervenor,  when  a  bar,  332 

lessor,  when  it  binds  lessee,  163 

married  women,  doctrine  as  to,  188,  192 

master  for  negligence  of  servant,  283 


1652  Index.  [References 

Jadgments  {continued). 

against  one,  co-trespasser,  effect  of,  194 

English  rule  as  to,  194,  196 
joint  debtor,  merges  liability  of  all,  564 
nullity  in  action  against  two,  026 
not  a  party,  52 

of  several  makers  of  note,  bars  action  against  all,  133,  833 
partners  on  joint  liability,  a  merger,  563 
two  joint  contractors,  merges  action,  187,  188 
when  release  is  a  bar,  196 
wrongdoers,  bars  action  against  both,  249 
who  has  no  opportunity  to  defend,  311 
partner  constitutes  an  estoppel,  297 
party  appearing  when  sued  by  wrong  name,  298 

contributing  money  for  counsel  in  case,  167,  168 
neglecting  to  set  up  fraud,  conclusive,  280 
officially,  when  a  bar  personally,  153,  154 
sued  by  a  wrong  name,  298 
who  is  dead,  void,  62 
without  service,  void,  50,  51 
plaintiff,  bars  an  action  for  same  cause,  562,  568 
principal,  168,  177 

and  surety,  binds  principal  when,  550 
when  it  binds  surety,  199 
receiver  conclusive  on  trustee  and  bondholders,  167 
R.  R.  Co.  for  damages,  bar  to  future  action,  288,  310 
schoolmaster  esto])s  his  successor,  152 
servant  or  agent,  binds  master  or  principal,  160,  161 
several,  bars  action  against  subsequently  discovered  partners,  563 
sheriff,  effect  of,  483 
several  joint  debtors,   187 
two  joint  contractors,  merges  action,  187,  188 
debtors,  216 
or  more  defendants  jointly,  effect  of,  283 

joint  makers,  merges  cause  of  action,  564 
trustee,  binds  beneficiaries,  166 
vendor  of  chattel,  operates  in  rem,  373 
wife,  binds  husband,  151 
allegation  that  cause  of  action  is  same,  sufficient,  1430 
ambiguity  in  may  be  explained  by  parol  evidence,  237 
are  always  of  record,  8,  9 

as  a  plea,  a  bar  as  evidence  conclusive,  107,  141 
merger  of  void  contract,  505 

to  mortgagor  bars  assignee  from  pleading  usury,  154 
status  of  person,  upon  whom  conclusive,  160 


are  to  pages.]  InDEX.  1558 

Judgments  (continued). 

asserting  right  under  it,  estops  party  from  attacking  it,  337,  377j 
assignee  of,  cannot  plead  usury,  154 

concluded,   154 
at  law,  applicable  in  equit}'-,  108 
conclusive  in  equity,  108 

when  defendant  not  barred  from  equitable  relief,  299 
bars  another  action  for  part  of  same  demand,  1421 
the  original  cause,  1421 
same  matter,  561 
any  defense  that  might  have  been  litigated,  561 
defense,  if  party  neglects  to  make,  260 
to  a  former  suit,  276 
of  fraud,  276 
party  beneiited  by  prosecution  of  action,  if  notified,  159 
successor  of  the  parties,  164 
benefits,  how  secured,  80 

between  parties  and  privies,  must  show  matter  litigated,  295 
the  same  parties  a  bar  to  another  action  pending  127 

or  privies,  conclusive,  1 07,  140,  141,  144,  145 
what  parties  they  are  conclusive,  146,  147,  155,  176,  284 
binding  effect  of,  44 

on  one  who  instigates  litigation,  167 
binds  all  persons  who  are  rejireseuted  by  parties,  148 

parties  and  privies  thereto,  145,  148,  149,  155,  176,  228,  268,  284 
appearing  by  agents  or  representatives,  163 
and  privies  only,  176 
notified  to  take  defense,  157 
party  who  has  been  admitted  to  defend,  199 
takes  the  defense  of  suit,  157  • 
with  ordinary  rights  of  a  litigant,  167 
principal  when  noticed  to  defend,  159 
privy  in  blood,  as  heir,  150 
purchaser  2^6ndente  lite,  206,  208 

third  persons  liable  to  defendant,  if  notified,  159  ^ 

vendee  of  chattels,  204 
both  litigants  must  be  concluded  bj',  156 
Bracton's  definition  of,  35,  37 
by  agreement  and  consent  when  res  judicata,  41 
assignee,  conclusive  of  assignability  of  cause,  297 
confession,  bars  defendant  from  recovering  judgment,  261 
confession  or  default,  of  what  conclusive,  41 
consent  effect,  of  as  res  judicata,  132 

of  parties,  final,  551 
default  and  judgment  on  verdicts,  same  cfiect,  42 
98 


1554  Index.  [References 

Judgments  {contimied). 

by  default  bars  a  writ  of  error,  47 

receiver,  binds  trustee  and  bond-holders,  167 
cannot  avail  or  bind  strangers,  114,  140 
be  collaterally  impeached,  46 
contradicted  by  evidence,  24 
impeaclied,  108 

from  within,  454 

because  based  on  -wrong  grounds,  314 
in  action  of  mandamus,  138 
obtained  where  party  divides  claim,  246,  250 
questioned  for  erroneous  instructions,  312 
reviewed  in  equity  for  mistakes,  454 
operate  as  a  bar  unless  subservient  action  is  for  same  wrong,  242 
clerical  errors  in,  will  not  vitiate  its  conclusiveness,  313 
collateral  and  incidental  questions  not  concluded  by,  324 
collecting  by  execution,  bars  appeal,  339 
concludes  rights  of  parties  as  to  causes  stated  in  pleading,  251 
conclusive  against  party  enticed  into  a  state,  547,  549 
as  to  all  allegations  on  record,  281,  282 

matters  litigated  in  actions  to  revive,  137 

that  might  have  been  litigated,  201,  276,  277,  278 
parties  and  their  rights,  482 
relation  of  debtor  and  creditor,  413 
usury,  47 
because  defendant  is  bound  to  use  diligence,  278 
effect  of,  cannot  be  questioned,  290 
how  limited,  25 
limited,  46 

by  the  matters  in  issue,  241 
evidence  of  indebtness  of  corporation,  1359,  1360 

their  own  correctness,  307 
in  equity  to  defenses,  party  fails  to  plead,   276 
if  same  question  arises  directly  or  collaterally,  279 
in  case  of  ejectment  without  pleading  it,  1423 

.equity,  as  to  defense  party  failed  to  plead,  276 
no  matter  how  numerous  the  questions  involved,  233 
of  every  fact  esscmtial  to  adjudication,  264 
everything  necessary  to  sustain,  263 
matters  properly  alleged,  46 

that  might  be  and  were  decided,  295 
same  facts  though  cause  of  action  different,  238 

matter,  in  second  suit,  279 
the  same  matter  in  another  tribunal,  284 
on  all  matters  that  might  have  been  litigated,  1416 
points  within  scope  of  record,  312 


are  to  pages.}  IndEX.  1555 

Judgments  {contijiued). 

conclusive  on  all  questions  involved,  if  tried  and  decided,  233 
defense  pleaded  in  former  action,  312 
defendant,  if  lie  has  had  his  day  in  court,  278 
parties  who  fail  to  defend,  277 

party  who  becomes  responsible  for  the  litigation,  155 
privies  who  are  liable  over,  158 
same  issues  between  same  parties,  232,  278,  279 
though  cause  of  action  different,  238 
evidence  necessary  to  identify  cause,  238 
parol  evidence  necessary  to  identify  matters,  238 
to  prove  its  own  existence,  38 

the  fact  that  it  was  rendered,  482 
where  actions  are  identical  as  to  parties  and  cause,  278 
upon  party  to  questions  that  might  have  been  decided,  295 

privies  in  estate,  in  blood  or  in  law,  155 
extent  of,  282,  283 

depends  upon  same  point  in  issue,  305 
conclusiveness  of,  376 

not  affected  because  procured  by  fraud,  298 
conditional,  when  no  bar,  256 

confessed  by  husband  in  favor  of  wife,  void,  41,  42 
contract  unimpeachable  for  want  of  corporate  power,  1360 
covers  all  objections  open  to  party  in  fiist  suit,  549 
creditors  bound  by  estoppel  of  mortgagor,  1023 

when  estopped  from  setting  up  their  liens,  1097 
date  of,  when  immaterial,  126 

debtor,  cannot  set  up  adverse  title  against  purchaser,  1296 
decides  every  matter  which  appertains  to  cause,  133 
defined,  25,  27 
deJBnition  of  the  term,  68 

denying  recovery  of  principal  no  bar  to  recovering  interest,  91 
determining  jurisdiction,  bind  parties,  315 
dismissing  an  appeal  for  divorce,  a  bar,  296 

the  suit  agreed,  a  bar,  296 
distinction  between  court  of  superior  and  limited,  898 
one  entered  by  court  and  clerk,  51 
those  in  x>ersoiiam  and  in  rem,  38 
doctrine  as  to  setting  aside  for  fraud,  453,  467 
on  demurrer,  181 
verdict,  181 
of  Roman  law  as  to  privies,  182,  186 
do  not  bar  counter-claim,  when,  47 

include  counter-claim  not  presented,  309,  310 
bar  counter-claim  not  presented,  268 
bind  party  without  notice,  156 


1556  Index.  [Beferenceg 

Jud^nients  (continued). 

efifuct  between  parties  and  privies  depeuds  on  the  issues,  299 
of,  cannot  be  questioned  by  argument  or  inference,  323 
not  dependent  upon  its  reasons,  101 
recital  that  defendant  was  served,  316 
record  containing  inconsistent  counts,  243,  245 
when  rendered  by  arbitrators,  299 
depends  upon  their  validity,  50,  51 
when  relied  on  as  evidence,  325 

used  in  pleading,  325 
where  claims  are  divisible,  244,  245 
no  opportunity  to  plead,  1410 
elements  of  a  valid,  84 

entered  in  open  court  by  consent,  conclusive,  841 
errors  in,  must  be  remedied  by  appeal,  312 
essentials  of,  on  the  plea  res  judicata,  38,  39 
estoppel  by  at  law,  applicable  in  equity,  108 

extends  beyond  what  appears  on  face,  282,  307 
is  never  inferred,  290 
must  be  mutual,  15,  147,  242 
when  parol  evidence  necessary  te  create,  290 
of,  must  be  certain  to  every  intent,  289 
set  aside  by  new  trial,  333 
every  party  plaintiff  and  defendant  represent,  bound,  164 
evidence  admissible  to  show  matters  passed  on,  234,  235,  236,  242,  243 
to  establish  identity  of  cause,  242 
identify  controversy  merged  in,  235 
aliunde  admissible  to  show  basis  of  judgment,  234 
inadmissible  to  take  matters  out  of  bar  of,  245,  259 

show  part  of  demand  not  litigated,  245 
necessary  to  show  it  is  for  same  subject  matter,  300 
of  jury  admissible  to  identify  subject  matter,  237 
to  make  it  conclusive,  what  should  be  shown,  292 
will  be  allowed  to  help  record,  291 
extrinsic  evidence  to  show  matters  in  issue,  312 
extinguishes  cause  of  action  on  which  founded,  560 

the  demand,   279 
final  and  conclusive  as  to  all  matters  that  might  have  been  litigated,  481 
as  to  matters  parties  neglect  to  htigate,  276,  277,  278 
points  decided,  105 
subject  matter  determined,  130 
however  erroneous,  107 
finality  of,  107 

first  recovered  in  one  of  two  actions  merges  cause,  562 
rendered  in  two  or  more  actions,  a  bar,  126 

where  separate  actions  are  pending  a  merger^  566 


arc  to  pages.]  InDEX.  1557 

Judjfments  {continued). 

for  alimony,  when  bars  action  by  husband  for  divorce,  238 
conversion  of  tree,  when  not  conchisive  as  of  title,  257 
damages  for  breach  of  contract  to  imply,  288 
against  carrier,  effect  of,  2G4 
for  destroying  building  by  fire,  248 
no  bar  to  contesting  validity  of  patent,  292 
defendant  in  trespass,  bars  trover  for  same  taking,  300 

bars  action  for  money  received,  310 
trover,  bars  action  for  money,  300,  301,  333 
dower  equally  conclusive  for  mesne  profits,  856 
false  imprisonment,  when  bars  action  for  slander,  506 
fraud  may  be  against  agent  or  principal,  3C0 

on  one  note,  conclusive  in  action  on  others,  231 
when  no  bar  to  action  on  contract,  242 
goods  sold  and  delivered,  conclusive  against  fraud,  231  ] 
interest  on  bond,  estops  defense  of  fraud,  231 
or  against  the  ancestor,  binds  the  heir,  202 
physician,  bars  action  for  malpractice,  2G1,  264,  275 
plaintiff,  conclusive  of  right  or  title  set  forth,  264 

as  to  what  might  have  been  recovered,  278 
on  contract  what  conclusive  of,  283 
the  defendant  in  trover,  when  a  bar,  98,  99 
wages,  conclusive  that  services  were  rendered,  263 
work  and  labor  when  a  bar,  250 
from  which  no  appeal  lies,  res  judicata^  39 
how  it  affects  purchaser,  pendente  lite,  208 

should  be  pleaded  as  a  bar,  1427,  1480 
notice  to  defend  extends  its  operation,  199,  201 
pronounced,  27 
have  the  character  which  belong  to  all  records,  24 
in  a  criminal  matter,  binding  on  all,  491 

proceeding,  conclusive  effect  of,  491 
action  against  sheriff,  when  bar  against  purchaser,  281 

by  husband  and  wife,  bars  action  by  husband,  152 
for  dower  when  conclusive  on  widow,  856 

goods  sold,  when  unavailable  in  similar  action,  259 
of  mandamus,  conclusive,  188 

partition,  bars  action  involving  same  matters,  303 
trespass,  when  admissible  in  ejectment,  884 

conclusive  of  title,  258 
trover,  for  one  conclusive  as  to  several  debtors,  248 

part,  bars  action  for  residue,  245 
unlawful  detainer,  what  conclusive  of,  283 
on,  defendant  cannot  plead  errors,  561 

two  counts,  when  bar  as  to  one  only,  255 


1558  Index,  [References 

Judg'ments  (continued). 

in  action  binding  against  partners,  231,  232,  233 

for  breach  of  one  of  several  covenants,  300 
recovery  for  damages,  conclusive,  482 
of  limited  and  general  issues,  237 
where  injury  is  of  continuing  nature,  289 
admiralty  proceedings,  how  to  be  determined,  67,  68 
ancient  times,  how  made  available,  77,  96 
assumpsit,  effect  of,  326 

when  it  may  bar  action  of  trover,  96 
case  of  Gates  v.  Preston,  questioned,  264,  275 
two  or  more  actions,  binding  effect  of,  125 
nuisance,  when  a  bar,  288,  289 
where  separate  actions  brought  for  same  wrong,  836 
strangers  notified  to  assume  defense,  162 
code  states  should  be  pleaded,  1434 
contempt,  final,  568 
criminal  case,  cannot  be  used  in  a  civil  one,  483 

proceedings,  like  judgments  in  rem,  491 
ejectment,  by  agreement  of  attorneys,  228 

conclusive  against  defendant  and  privies,  222 
as  to  mesne  profits,  220,  222,  223 

contract  for  the  sale  of  land,  220 

distinctions  in  regard  to  their  conclusiveness,  229 

effect  in  an  action  for  trespass,  230 

of  mesjie  profits,  229,  230 
in  subsequent  action  on  the  judgment,  230 

is  evidence  of  collateral  matters,  223 
for  one  of  two  parcels  of  land,  effect  of,  222 
general  rule  as  to  effect  of,  221 
in  actions  of,  conclusiveness  of,  220,  231 
California,  225 
England,  229,  230 
Iowa,  221 
Kentucky,  221 
Maryland,  225 
Minnesota,  221 
Missouri,  227 
New  Jersey,  220 
Ohio,  220,  221 
Pennsylvania,  220,  221 
South  Carolina,  221 
on  disclaimer  of  defendant,  229 
equitable  titles,  220 
in  ejectment  on  mortgage,  bar  in  another  suit,  310 

no  distinction  between  one  by  verdict  and  default,  221 


are  to  pages.]  InDEX.  1559 

Judgments  (continued.) 

in  ejectment  res  judicata  as  to  plaintiff's  possession,  230 
tenant  concluded  by,  223 

when  not  available  in  actions  for  mesne  profits,  223 
conclusive  as  to  claim  for  improvements,  277 
it  settles  the  title,  is  conclusive,  222 
no  bar  to  a  second  suit,  221 
in  equity  as  to  defenses,  party  fails  to  plead,  276 
efifect  of,  616,  617 
favor  of  several,  bars  action  against  one,  302 
validity  of  municipal  bonds,  effect  of,  549 
vendor,  bars  suit  for  non-delivery,  259 
for  part,  bars  action  for  balance,  249 

in  forcible  entry  and  detainer,  conclusive  as  to  possession,  232,  233 
foreclosure,  binds  ail  the  estate  held  by  defendants,  205 
justice  court,  when  a  bar  to  action  in  superior  court,  261 
justice's  court,  when  a  bar  to  residue  of  demand,  246 
matters  of  private  right,  binds  only  parties  and  privies,  157 
one  action,  when  a  bar  to  another,  106 
federal  circuit  court,  conclusive  in  another,  284 
Outram  v.  Morewood,  151 

partition,  a  bar  to  every  allegation  made  and  denied,  307 
against  a  widow,  when  conclusive,  304 
binds  unknown  owners,  305 
cannot  be  collaterally  attacked,  305 
conclusive  against  all  parties  named,  303 
distinction  at  common  law  and  chancery,  306 
final  and  conclusive  until  set  aside,  305 
when  conclusive  on  entire  title,  303 

executed,  conclusive  evidence,  306 
ovXj  prima  facie  evidence,  306 
what  necessary  to  make  it  conclusive,  303 
in  personal  actions,  upon  what  dependent,  69 
in  personam,  140,  571,  586 

conclusive  against  parties,  140 

on  personal  representatives,  144 

privies,  144 
upon  matters  directly  in  question,  143 
difference  between,  and  those  in  rem,  140 

in  effect  as  to  conclusiveness,  143 
of  court  of  exclusive  jurisdiction,  142,  143 
on  merits  binding  on  assignees,  144 
only  as  to  material  matters  in  issue,  141 
principles  which  renders  them  conclusive,  140 
strangers  not  bound  by,  140 
in  .U.  S.  courts,  143 


1.^60  Index.  [lie/erencea 

Judgments  (continued.) 

in  personam  must  show  that  court  had  jurisdiction  of  party,  63,  64 
to  be  binding,  subject  and  parties  must  be  same,  143 
without  jurisdiction  of  parties,  void,  63,  64 
notice  void,  311 
in  real  actions,  when  an  estoppel,  93 
in  rem,  36,  37,  344,  017,  018 

adjudication  of  party  as  bankrupt  is,  346 
affect  personal  status  or  relations  of  party,  347 
against  a  garnishee,  305 

bankruptcy  proceedings  are  in  the  nature  of,  285 
conclusive  if  not  pleaded,  1415 

on  the  whole  world,  216.  356 
conclusiveness  of,  344 
confiscation  cases,  are,  349 

comprises  proceedings  in  prize  and  admiralty  courts,  347 
decree  for  sale  of  land  is,  347 
defendant  in  trover,  bars  action  for  money,  333 
definition  of,  344 
derivation  of  the  term,  344 
distinction  between  them  and  in  personam,  345 
doctrine  as  to  conclusiveness  of,  349 
effect  of,  353,  355 

essential  requirements  to  a  valid,  356,  357 
for  damages  for  broach  of  contract  to  imply  a  bar,  288 

the  recovery  of  title  to  real  estate,  352 
how  executed,  353 
in  adjudication  upon  status,  38 

admiralty,  are  of  exclusive  federal  jurisdiction,  358 
attachment  proceedings,  358,  359 
include  proceedings  in  probate  and  like  courts,  347,  348 
is  upon  the  status,  345 
jurisdiction  of  court  to  render,  how  obtained,  356 

federal  courts  to  render,  347 
of  persons  concluded  by,  353 
on  constructive  service,  359,  362 

chattels,  347 
probate  of  a  will  is  an  instance  of,  346 
renders  the  tiling  wliiit  it  declares  it  to  be,  346 
that  operates  like  condemnation  or  forfeiture,  847,  348 
transferring  or  creating  a  title,  391 
when  they  cannot  Ijc  enforced  in  other  states,  620 
an  astoppel  i7i  jxtis,  373 
in  replevin,  bars  action  for  the  same  taking,  293 
conclusive  to  recover  on  bond,  197 
if  satisfied,  transfers  title,  294 


are  to  pages.]  IndEX.  1561 

Judgments  (continued). 

in  replevin  may  be  identified  by  parol  evidence,  294 

plead  as  bar  in  various  actions,  1434 
prevent  same  issues  being  tried  on  bond,  293 
wben  title  in  issue,  res  judicata,  293 
no  bar,  373 
second  suit,  when  pleadable  in  bar  to  first,  252  • 
state  court,  available  in  federal  court,  108,  109 
trespass,  effect  of  in  Pennsylvania,  484,  485 

or  trover,  when  pleadable  in  bar,  213 
when  bars  action  of  assumpsit,  235 
without  satisfaction,  no  bar,  333,  334 
trover,  effect  of,  194 

for  horse,  ba*-s  action  for  taking,  244 
may  not  cover  whole  conversion,  257 
or  trespass,  when  it  not  available  as  a  bar,  292,  293 
which  record  show  several  issues,  24 
inflexibility  of  rule,  where  matter  in  issue,  245 
intervenor,  bound  by,  156,  157 

inter  partes,  binds  parties,  and  those  claiming  under  them,  148 
involving  important  rights,  may  be  re-examined,  123 
title,  conclusive  on  vendor,  if  notified,  199 
is  prima  facie  termination  of  matters  in  controversy,  128 
res  judicata  in  another  action  pending  for  same  cause,  127 
the  termination  of  an  action,  26,  27 
issues  that  are  essential  to  their  conclusiveness,  281 
joint,  conclusive  against  one,  in  suit  for  contribution,  311 
kinds  of,  final  and  interlocutory,  27 
limitations  to  actions  for  relief  against,  464 
limited  nature  of,  does  not  prevent  embracing  all  issues,  311 
of  United  States  Courts,  399 
to  the  points  actually  decided,  103 
marshaling  liens,  when  conclusive,  534 
matters  which  would  have  been  defense  to  former  suit,  276 
may  be  bar,  and  yet  no  adjudication  on  merits,  296 
conclusive  evidence  and  yet  no  bar,  103 
explained  by  evidence,  24 
given  in  evidence  under  general  issue,  1425 
impeached  if  obtained  in  fraud  of  bankrupt  law,  452 
made  conclusive  by  estoppels  in  pais,  336 
used  to  show  suit  was  determined,  334 

what  party  has  been  compelled  to  pay,  334 
merges  all  defenses  though  disregarded  by  the  conrt,  313 
cause  of  action,  293 
defenses  not  made,  261 
note,  559,  560 


1562  Index.  [Re/ei-encei 

Judginents  {continued^. 

merges  original  cause  of  action,  124,  133 

what  questions  of  fraud,  454 
merger  notwithstanding  errors  by  the  court,  313 
of,  549,  552 

matters  in,  conclusive  in  equity,  454 
mistakes  and  errors  iu,  how  corrected,  453,  454 

of  judge  will  not  affect  conclusiveness,  312 
must  be  between  the  same  parties,  313 

bind  both  if  obligatory  on  cither,  242 

be  certain,  not  extended  by  implication,  262 

followed  in  every  action  by  parties  on  same  issues,  232 
on  the  merits,  236 

rendered  by  court  of  competent  juri^liction,  313 
nature  of,  does  not  affect  its  conclusiveness,  135 

how  determined,  27 
necessary  to  valid  judgments  of  inferior  courts,  406 
negativing  right  of  plaintiff  or  defendant,  231 

prevents  its  subsequent  assertion,  152 
neither  benefits  nor  injures  third  parties,  885 
nil  debet  not  a  good  plea  to,  1435 
no  bar  to  matters  not  in  issue,  105 

where  the  cause  of  action  is  not  identical,  106 
not  available  in  favor  of  strangers,  1418 

conclusive  on  collateral  or  incidental  matters,  284 
limited  to  facts,  not  admitted  or  proved,  280 
notice  given  by  defendant  to  party  will  bind  him,  158 
nul  tiel  record,  only  plea  to,  1435 
obtained  on  fraudulent  instruments,  conclusive,  462 

perjured  testimony,  when  vahd,  457 
of  acquittal,  effect  of,  483 

appellate  court,  binding  on  lower  court,  118 

conclusive  as  to  law  of  case,  118 
binding,  though  of  a  divided  court,  121 
effect  of,  118 

when  it  may  be  questioned  by  that  court,  121 
arbitrators,  how  obtained,  530 
a  cause,  what  it  is,  65 

competent  tribunal,  conclusive  in  every  other,  233 
conviction,  effect  of,  483 

in  U.  S.  court,  conclusiveness  of,  484 
court  having  jurisdiction,  conclusive  though  erroneous,  421 

until  set  aside,  63 
of  claims,  when  conclusive,  534 

general  jurisdiction  cannot  be  collaterally  attacked,  284 
last  resort,  binding,  though  case  dismissed,  122 


are  to  pages.]  IndeX.  1563 

Jadgments  (continued). 

of  court  on  particular  point,  conclusive,  106 

refusing  party  right  to  be  heard,  void,  110 
having  special  statutory  authority,  404 
of  competent  jurisdiction  not  affected  by  errors,  316,  317 
exclusive  jurisdiction,  bankrupt  discharges  are,  285 
limited  jurisdiction,  397 
peculiar  and  exclusive  jurisdiction,  final,  534 
limited  or  general  jurisdiction,  conclusive,  109 
rightful  jurisdiction  conclusive,  109 
confession,  res  judicata,  43 

dismissal  void,  when  defendant  confesses  judgment,  62 
when  a  bar,  295,  296 
without  prejudice,  no  bar,  297 
ecclesiastical  courts,  conclusive,  532,  534 
inferior  courts,  397 

always  open  to  inquiry,  406,  407 
beyond  jurisdiction,  void,  453 
irregularities  in,  cannot  be  inquired  into,  403 
rendered  on  insufficient  evidence,  313 
questionable  for  jurisdiction,  406,  407 
what  must  be  sbown  by  records,  401 
when  void,  51 

of  justices  of  the  peace,  of  what  conclusive,  403,  404 
void  without  jurisdiction,  404 
limited  and  inferior  courts  what  must  be  shown,  397 
jurisdiction  must  be  pleaded,  1431 

when  it  cannot  be  plead  in  bar,  1431 
military  courts,  513,  516 
non-suit  after  trial,  effect  of,  296 
statutory  requisites  of,  661,  662 

subject  matter  of,  must  be  within  the  jurisdiction,  639 
upon  constructive  service  res  judicata,  627 

principles  apf)licable  to,  624,  628 
when  void,  627,  628 
status  of  parties,  623,  624 
what  jurisdiction  dependent,  640 
Utah  divorces,  652,  655 
valid,  if  parties  actually  domiciled  within  jurisdiction,  640 

where  court  has  jurisdiction,  630  . 

void  as  to  one  defendant  void  as  to  all,  683 
what  may  always  be  set  up  against  their  enforcement,  611 
included  under,  612 

must  be  shown  in  actions  in  personam,  664 
record  of  should  show,  614,  615 
■when  conclusive,  616,  617 


1564  Index.  [References 

Judgments  (rontimied). 

when  courts  will  enjoin  actions  on,  G71,  672 

of  other  states,  when  examinable  in  U.  S.  supreme  court,  684,  690 
may  be  impeached  by  parties,  5S7 
not  conclusive,  579 

party  cannot  question  jurisdiction,  619 
res  j'ldico.ta,  640 

valid  where  rendered,  and  invalid  in  other  states,  620 
void  beyond  jurisdiction  where  rendered,  582,  585 
for  uncertainty,  676,  677 
where  jurisdiction  shown,  errors  will  not  avoid,  674 
fraud  no  defense  to,  670 
party  within  jurisdiction  of  court,  624,  626 
record  shows  no  appearance  or  service,  681,  682 
without  personal  service,  is  unenforceable,  622     - 
why  conclusive,  GOO,  601 

enforcible  by  the  whole  world,  579 
examinable  as  to  jurisdiction,  678 
limitation  of  conclusiveness  of,  682,  583 
may  be  binding  where  rendered,  and  yet  void,  622,  623 
valid  for  resident  without  personal  service,  640 
where  rendered,  and  void  in  another,  620 
must  be  final  and  conclusive  where  rendered,  681 
nil  deJiet  not  a  good  plea  to,  606,  667 
not  subject  to  collateral  impeachment,  672,  673 
nul  tiel  record,  effect  of  in  actions  on,  066 
objects  of  constitutional  provisions  regarding,  599,  600 
of  admiralty  courts,  572,   574 
condemnation,  576 
inferior  courts,  jurisdiction  mu§t  be  show'n,  615 

tribunals  within  constitutional  provisions,  613, 
614 
the  probate  of  a  will,  effect  of,  612 
on  construction,  of  local  statutes,  677 
constructive  service,  eficct  of,  620 

to  what  extent  valid,  622,  627 
foreclosure  of  mortgage,  664 
plea  good,  if  ijood  in  state  where  rendered,  601 
of  fraud,  not  admissible  in  action  on,  668 
jurisdiction  a  matter  of  defense,  664 
mil  ticl  record  is  the  only  defense,  614,  615 
pleading  fraud  as  a  defense  to,  668,  675 

in  actions  on,  666,  667 
pleas  admissible  to,  1435,  1436 
bad  in  actions  on,  667 
questioning  jurisdiction,  631 


are  to  pages.]  InDEX.  1565 

Judgrments  (continued). 

of  other  states,  point  open  to  litigation  in  actions  on,  635,  686 
power  of  court  rendering,  examinable  into,  573 
presumptions  in  favor  of,  676 

and  accredited  to,  602 
jurisdiction,  615  * 

regularity,  631,  632 
prima  facie  evidence  until  jurisdiction  established,  611 
principles  applicable  to,  702,  703 

in  regard  to  subject  matter,  639 
reasons  for  questioning  attorney's  appearance,  630,  636 

why  conclusive,  680,  681 
recital  of  personal  service  must  be  impeached,  665 

proof  necessary  to  impeach,  665 
recitals  as  to  jurisdiction  may  be  contradicted,  641,  642 
record  of  showing  neither  service  nor  appearance,  677 
rendered  without  jurisdiction,  void,  615 
general  rule  in  regard  to,  572 
having  no  extra- territorial  effect,  616 
how  appearance  by  attorney  questioned,  631^ 
far  affected  by  fraud.  641,  643 
jurisdiction  obtained,  638,  639 
if  appeal  does  not  set  aside  judgment,  conclusive,  680,  681 
conclusive  where  rendered,  fraud  no  defense,  672 
fraudulently  obtained  conclusive  until  reversed,  674 
jurisdiction  not  impeached,  conclusive,  611 
»  valid  where  rendered,  valid  in  other  states,  668 

impeaching,  questioning  appearance  of  attorney,  630,  635 
importance  of  jurisdiction  of  subject  matter,  639 
in  actions  of  divorce,  636,  6G1 

on,  want  of  jurisdiction  maybe  shown,  602,  607 
admiralty,  conclusive  between  insured  and  insurer,  575 
enforcible  by  all  com-ts,  577,  588 
in  attachment,  627,  629 

and  garnishment,  effect  of,  585,  586 
no  evidence  of  a  debt,  626 
no  merger,  627 
void  as  to  excess,  626,  627 
divorce  doctrine  conflicting  in  N.  Y.,  645,  647 
in  regard  to  in  111.,  651 

N.  J.,  643,  644 
Wis.,  652 
in  favor  of  lunatic  by  guardian,  may  be  sued  upon,  611 

garnishment,  678 
in  rem,  as  to  personal  property,  572,  573 

bind  property  within  jurisdiction,  626,  627 


1566  Index.  [References 

Judgments  {continned). 

of  other  states  in  rem,  cannot  be  the  basis  of  an  action,  G22,  623 
conclusive  of  their  own  existence,  575 
conclusiveness  of,  579,  580,  583 
interpreting  statutes,  conclusive,  684,  685 
irregularities  do  not  avoid,  076 
jurisdiction  admitted  or  proved,  effect  of,  636 
complete  when  party  served,  635 
need  not  be  averred,  GG4 
of  court  rendering,  conclusive  in  actions,675 
jurisdictional  facts  only,  inquirable  into,  578,  580 
matters  considered,  638,  641 
questions  in  regard  to,  615 
defects  in  record,  how  taken  advantage  of,  666 
defenses  available  against,  068 

to,  under  code  pleading,  671,  672 
depends  on  competency  of  court  pronouncing,  606 
design  of  constitution  in  regard  to,  606 
distinction  as  to  use  of,  as  actions,  defenses,  571,  586 
between  superior  and  inferior  courts,  615 
in  cases  as  to  appearance,  034 
do  they  include  justices  of  the  peace,  613,  614 
doctrine  applicable  to  civil  and  criminal  in  N.  C,  612 

Texas,  612 
only  in  civil  cases  in  Mass.,  612 
courts  that  have  no  records,  613,014 
fraud  in  ]Sr.  Y.,  669 

England,  0G9,  673 
Iowa,  G12,  613,  669 
Kentucky,  669 
if  obtained  during  temporary  residence,  642 
in  regard  .to,  settled  in  U.  S.  Sup.  Court,  608,  609 
of  the  U.  S.  Sup.  Court  as  to,  603,  607,  058,  660 

Yattcl  in  regard  to,  572 
that  jurisdiction  is  inquirable  into,  610,  611 
during  the  late  war,  698,  699 

revolution,  G98,  702 
effect  given  to  records  of,  003,  604 
in  each  state,  678 
of,  601 

dependent  upon  the  lex  fori,  615 

determined  by  laws  of  state  where  rendered,  676 

fraud  and  collusion,  642,  652 

recital  of  appearance  by  attorney,  030,  636 

personal  service,  665 
where  an  appeal  is  pending,  679 


arelopar/es]  InDEX.  1567 

Judgments  {continued). 

of  other  states,  effect  of,  where  court  has  jurisdiction,  604 

rendered  without  jurisdiction,  C41,  643 
constitutional   provisions  as  to,  602 
English  doctrine  as  to,  656,  (io8 

rule  as  to  appearance  of  attorney,  632,  634 
equally  conclusive,  acquittal  or  conviction,  577 
essential  requisites  of,  to  bo  conclusive,  619 
evidence  inadmissible  under  plea  of  nul  tiel  record^  666 
extract  from  Thompson  v.  Whitman,  608,  609 
failure  of  jurisdiction  renders  them  a  nullity,  571 
force  and  effect  of,  603 
fraud  no  defense,  to  618 
full  faith  and  credit  given  to,  620,  621 
actions  on,  bar  all  defenses  except  jurisdiction,  607 
admiralty,  rule  in  England  as  to,  575 
against  citizens  temporarily  absent  from  state,  629 
corporations,  603 

not  served,  void,  627 
one  of  two  defendants  only,  682,  683 
void,  626,  627 
allegations  in  pleading  records  of  other  states,  664 
matters  of  legal  regulation,  638 
on  status  of  pai-ties,  638 
at  war  with  each  other,  698,  699,  702 
authentication  how  executed  and  who  by,  661,  663 
binds  all  citizens  within  jurisdiction,  638 
by  attachment  where  defendant  appeared,  602,  603 

confession,  678 
cannot  be  made  conclusive  without  jurisdiction,  607,  608 
competent  defense  to  show  want  of  jurisdiction,  607 
conclusive  as  to  everything  except  jurisdiction,  601 

where  rendered,  conclusive  everywhere, 601, 605 
only  if  court  has  jurisdiction,  607 
of  courts-martial,  conclusiveness  of,  510 
conflicting  doctrine  as  to,  604,  605,  637,  648 
contradicting  jurisdiction  aud  attorneys'  authority,  680, 
636 
parol  evidence  admissible  to  enlarge  its  operation,  312 
give  it  proper  effect,  243 
show  matters  in  issue,  329,  330 
not  inconsistent  with  record,  admissible,  234 
when  necessary  to  make  bar,  290,  291 
party  accepting,  cannot  reject  conditions  on  which  made,  337 
cannot  deny  rendition  on  date  of  entry,  306 

recover  several  by  splitting  up  claim,  248,  253 


1568  Index.  [Ee/ereneea 

Judgments  (continued). 

party  having  election  as  to  remedies,  can  have  but  one,  535 
obtaining,  cannot  repudiate,  337,  338 
pleading,  should  show  that  matters  are  same,  235 
taking  part  in,  cannot  deny  power  to  render,  340 
when  not  permitted  to  show  errors  in,  75 
personal  as  res  judicata,  to  whom  applicable,  145 
persons  under  disability,  how  bound,  178 

who  are  not  bound  by,  146 
plead  as  bar  in  actions  arising  on  same  contract,  1434 
in  bar  of  action  arising  out  of  same  cause,  1435 
must  be  on  point  distinctly  in  issue,  1428 
pleading  estops  party  from  taking  advantage  of,  336 
it  by  way  of  estoppel,  1433,  1434 
in  abatement,  no  right  to  plead  it  in  bar,  252 
precludes  defendant  neglecting  to  plead  his  defense,  308,  309 
presumption  that  it  is  a  correct  record,  482 
presumjitions  in  favor  of,  316 

that  it  covers  the  whole  case,  257,  311 
prevent  its  being  collaterally  assailed,  421 
principles  applicable  to,  599,  GOO 
principle  of,  conclusiveness  of,  298 
privy  may  take  advantage  of,  150 
questions  of  identit)-,  how  determined,  234,  237 

tliat  may  arise  from  the  fact  of  their  rendition,  38 
ratification  of,  by  enforcing  it,  339 
reasons  assigned  by  court  immaterial  in,  312 
reason  for  rule  of  conclusiveness  between  parties,  147 

in  favor,  their  conclusiveness,  130,  131 
record  imports  absolute  verity,  307 

of,  when  evidence  in  favor  of  a  stranger,  335 

must  show  same  matters  could  have  been  litigated,  329 

with  some  certaintj'^  the  points  determined,  289 
what  necessary  to  show  on  its  face,  1421 
recovered  against  plaintiff  on  merits,  conclusive,  561 
may  be  plead  in  bar  of  a  second  action,  561 
origin  of  this  plea,  79 
on  part  of  claim,  merges  the  whole,  247 

demand  bars  action  for  the  residue,  250 

ends  litigation  as  to  whole,  247,  250 
entire  claim,  a  good  plea  in  bar  for  residue,  251 
partnership  contract,  merges  it,  297 
petition  for  a  highwaj^,  a  bar,  296 
plea  in  abatement,  conclusive  in  another  action,  232 
of  non  assumpsit  conclusive  for  plaintiff,  568 
71071  est /actum  eflfect  of,  326 


are  to  pages.]  InDEX.  1569 

Judgments  (continued). 

on  plea  of  mil  tiel  record,  conclusiveness  of,  298 
questions  of  law  equally  conclusive,  280 

or  fact  equally  conclusive,  232,  233 
title,  conclusive  on  privies,  204 
to  land,  203 
applies  only  to  part  of  title  put  in  issue,  203 
on  report  of  referee,  master,  etc  ,  res  judicata,  41 
-     running  account  when  a  bar,  2d0 

scire  facias  on  a  mortgage,  merges  it,  565 
single  act  of  trespass  or  trover,  conclusive,  247,  248 
the  merits  an  absolute  bar  whether  pleaded  or  not,  1416 
on  scire  facias  conclusive,  215 
point  when  it  may  and  may  not  be  a  bar,  1049 
title  in  trespass  bars  action  for  damages,  151 
traversable  facts,  bars  action  for  different  relief,  238 
trial  by  court  without  jury,  567 

validity  of  bonds  cannot  be  attacked  in  mandamus,  138 
patent,  what  conclusive  of,  284 
tax  binds  tax-payers,  166 
operation  of  as  a  merger,  559 
operates  when  it  becomes  res  judicata,  561 
ordering  defendant  to  pay  what  is  demanded  valid,  61 
.     of  ouster,  conclusive  against  successor  in  office,  203 
in  quo  warranto,  152 
probate  court  cannot  be  impeached  collaterally,  402,  404 
how  avoided  in  Mass.  453 
courts  only  examinable  as  to  jurisdiction,  403 
release  or  dismissal,  how  made  available,  1417 
retraxit,  48 

a  bar,  296 
reversal,  effect  of,  106 

subject  matter  and  parties  makes  judgment  conclusive,  421 
superior  court  when  it  cannot  be  set  aside,  418 
U.  S.  courts  when  final,  306 
various  courts  that  are  conclusive,  107 
on  accounting  between  partners,  conclusive  232,  233 
account,  when  a  bar  to  an  action,  246 
action  prematurely  brought,  no  bar,  240,  333 
agreed  case,  final,  551 

an  entire  contract  for  delivery  of  goods,  311 
an  entire  contract,  prevents  second  suit  for  part,  279 
bond,  when  bars  action  of  tort,  257 
appeal,  conclusive  of  facts  necessary  to  support  it,  263 
i  or  affirmance,  conclusive,  262 

awards  of  arbitrators,  527,  532 
99 


1570  Index.  [References 

Judgements  (continued). 

on  book  account,  when  a  bar,  249 

bonds,  conclusive  in  action  of  mandamus,  138 

bond  or  contract,  extinguishes  it,  564 

compromise,  merges  all  matters  included  in  action,  562 

construction  of  a  deed,  conclusive,  326 

contract,  conclusive  in  favor  of  plaintiff,  262 

when  bars  action  of  tort,  239  ' 

counter-claim,  when  res  judicata,  279,  280 
covenant  of  wanant^',  bars  subsequent  action  on  same,  565 
declaration  containing  several  causes  of  action,  243 
demand  plead  as  a  set  off,  Vjarred,  279 
demands  presented,  is  complete  bar,  236 
demm-rer,  conclusive  as  to  what  issues,  322 

conclusiveness  of,  321,  323 
demurrer,  when  a  bar,  106 

when  not  conclusive,  323 
dismissal,  Avhen  a  bar,  297 
distinct  contracts,  when  no  bar,  255 
facts  once  put  in  issue,  conclusive,  312 

firm  note  made  by  one  member,  conclusive  of  partnership,  231 
general  issue,  effect  of,  328 

foreclosure,  conclusive  between  parties  and  privies,  205 
issue  of  fact,  conclusive,  though  no  relief  asked,  233 
joint  contract,  a  bar,  1 98 

and  several  contract,  no  bar,  188 
verdict  for  plaintiff,  in  trover,  244 
lost  note,  when  complete  bar,  127,  128 
matters  growing  out  of  one  contract,  253 
motion,  effect  of,  283 
municipal  securities,  549 
note,  of  what  conclusive  evidence,  231,  232 
when  res  judicata  as  to  mortgage,  565 
one  item  of  indebtedness,  when  a  bar,  235 
remedy,  when  bars  any  other,  339 
one  who  agrees  to  be  bound  by,  is  privy,  150 
071US,  on  whom  to  show  it  is  not  conclusive,  295 
release  of  for  less  than  face,  a  bar,  329 
relied  on  as  fact,  must  be  set  forth  in  the  answer,  1415 
rendered  against  army  officers  during  the  late  war,  53,  54 
between  persons,  jurisdiction  presumed,  410 
by  court  of  competent  jiuisdiction,  when  final,  99,  100 
with  and  without  jurisdiction,  421 
representing  it  in  one  aspect  prevents  giving  it  another,  336,  337 
requirements  to  bind  person  not  party,  159  ^ 

requires  notice  to  be  valid,  51 


are  to  pages.]  IndEX.  1571 

Judgments  {continued). 

requisite  that  amount  of  should  be  certain,  61 
to  its  conclusive  effect,  313 

know  what  is  within  the  bar  of,  237 
make  party  privy  to,  155,  156 
res  judicata,  39 

as  to  all  things  that  were  or  could  be  litigated,  301 
revivor  of,  137 
rules  in  regard  to,  401,  402 

ascertaining  its  conclusiveness,  237 
of  conclusiveness  prevents  litigation,  310 
satisfaction  by  one  of  two  wrongdoers  a  bar,  194 
should  be  pleaded  when  ojiportunity  presents  itself,  1420 

show  that  same  matter  was  litigated,  328 
test  whether  it  is  for  same  cause  in  second  action,  96 
that  are  absolutely  void,  52,  54 
conclusive,  136 
^  bankrupt's  discharge  is  fraudulent,  232 

does  not  determine  right  of  j)roperty,  373 
the  most,  extensive  species  of  records,  25 
though  erroneous,  binding  until  reversed,  534 
res  judicata.,  312 
►  informal,  when  a  complete  bar,  295 

irregular,  good  until  reversed,  58 
title  by,  213,  214 

to  be  conclusive,  need  only  be  against  parties'  interest,  297,  298 
on  parties,  must  be  adversary  parties,  149 
eflfectual,  what  it  must  show,  551 

res  judicata,  must  be  final,  valid,  and  on  merits,  38,  39 
should  be  for  same  cause,  85 

between  the  same  parties,  88,  107,  140 
valid,  must  be  against  persons  capable  of  being  parties,  62 
bind  party  by,  must  have  his  day  in  court,  201 
operate  as  a  bar,  what  must  appear  by  record  of,  1415 
prove  itself,  is  conclusive  against  the  world,  482 
transferring  or  creating  title,  391 
upoiA  the  findings,  makes  the  estoppel,  240 

merits,  conclusive  until  reversed,  236,  242 
unreversed  and  unrepealed,  conclusive,  .200 
valid,  if  by  reference  it  can  be  identified,  61 

though  irregular,  47 
validity  cannot  be  denied  by  party  collecting  money  on,  337 

of  cannot  be  collaterally  questioned,  313 
various  kinds  that  may  be  res  judicata,  41 
vitiated  hy  fraud,  256 
void  and  voidable,  distinction  between,  50,  51 


1572  Index.  [Rejerences 

Judgments  (eontimied). 

void  for  defective  service,  315 
in  contempt  cases,  when,  53 
for  want  of  jurisdiction  over  iJerson,  24 
subject  to  attack,  50 
when  it  contains  inconsistent  matters,  62 

judges  anything  contrary  to  law,  61 
its  object  is  impossible,  Gl 
rendered  by  tribunal  without  authority,  52 
without  giving  party  an  opjwrtunity  to  be  heard,  52 
voidable  binding  until  reversed,  50,  58 

can  be  assailed  only  by  direct  proceeding,  63 
voluntarily  adjudged  is,  r  en  judicata,  40 

satisfying,  prevents  party  disputing,  341 
voluntary  settlement  of,  prevents  appeal,  339,  341 

what  conclusive  of,  44,  48 
what  identity  of  interest  to  create  a  bar,  155 

necessary  to  render  it  conclusive,  104 
when  conclusive  as  to  admission  of  partnership,  835,  386 
claim  becomes  merged  in,  243 
conclusive  of  title  in  another  action,  238 
considered  as  having  settled  all  matters,  291 
conclusive  without  pleading,  1410,  1423,  1424 
evidence  as  to  amount  of  damages,  38 

of  negligence,  for  principal,  38 
equity  will  not  interfere  with,  462 
final,  27 

followed  by  U.  S.  supreme  court,  683,  687 
inadmissible  under  general  issue,  1423 
it  bars  subsequent  suit,  331,  332 

binds  party  to  an  indemnifying  bond,  202 

one  who  intervenes  in  a  suit,  213 
can  and  cannot  be  controlled  by  evidence,  329 
cannot  be  rendered  without  deciding  specific  issues,  232 
is  uncertain,  52 

may  be  collaterally  attacked,  311 
must  be  averred  to  be  for  the  same  cause,  1419 
on  merits,  1419 
^     operates  as  a  bar,  110 

will  not  bar  equitable  relief,  299 
jurisdiction  shown,  conclusive,  407 
jury  may  determine  the  matter  in  issue,  234 
limited  to  points  actually  decided,  312 
merely  voidable,  61 
no  bar  to  a  second  action,  105 
not  necessary  that  precise  point  should  be  in  issue,  281 


arc  to  pages.]  INDEX.  1673 

Judgments  (continued). 

when  one  cannot  be  bound  by,  216,  218 

parol  evidence  admissible  to  identify  parties,  234,  235 
party  estopped  from  questioning,  421 

may  reply  that  it  is  not  same  cause,  234 
plea  of  former,  may  be  defeated,  257 
prima  facie  evidence  upon  one  of  several  counts,  234,  236 
proof  against  collateral  attack,  423 
properly  entered,  when  void,  51 
it  leaves  questions  unsettled  is  unavailable,  289 
record  sufficient  proof  of  matter  in  issue,  329 
regarded  as  rendered  on  merits,  331,  332  ''"- 

relievable  in  equity  as  to  defense  not  plead,  260,  261 
same  question  at  issue  in  two  cases,  absolute  bar,  280 
U.  S.  cannot  be  bound  by,  216,  218 
used  as  evidence,  cannot  be  impeached,  313 

in  pleading,  must  show  what  determined,  291 
verdict  without,  "will  be  conclusive,  566,  567 
void  for  uncertainty,  568 
where  bankrupt  fails  to  plead  discharge,  276,  286 

conclusive  in  evidence  without  pleading,  1423 
injury  is  of  permanent  character,  a  bar,  289 
it  must  be  specially  pleaded,  1428 
jurisdiction  is  shown,  valid,  551 

party  against  whom  used  fails  to  show  it  was  not  on  merits,  236 
can  recover  all  his  damages,  a  bar,  288 
negligently  fails  to  defend,  a  bar,  261 
sues  for  part  of  indivisible  demand,  246 
plaintiff  has  several  separate  causes  of  action,  310 
point  in  issue  determined,  a  bar,  332 

several  actions  are  brought  by  same  parties  first  a  merger,  336 
.  there  is  no  issue  to  be  decided,  27 
whether  a  bar  depends  upon  its  being  on  merits,  239 
while  unreversed,  final,  105 

without  regard  to  nature  of  question  that  creates  bar,  280 
why  conclusive  on  principals  and  sureties,  168,  177 
the  whole  world,  396 
regarded  with  favor  as  a  bar,  89 
strangers  not  bound  by,  147 
of  superior  court,  when  it  cannot  be  assailed,  422 
limited,  420 
Judicial — 

acts  of  one  nation  to  be  respected  by  another,  579 

when  binding  on  infants,  178 
determinations  that  are  res  judicata^  42 
judgments,  what  are  to  be  binding,  942 


1574  Index.  [lie/erences 

Judicial  (continued). 

proceedings  examinable  to  ascertain  authority  of  court,  579,  580 
"what  requisite  to  make  conclusive,  579 
when  binding  on  infant,  1259 
sales,  estoppel  applicable  to,  719 
Jurisdiction — 

always  inquirable  into  as  regards  foreign  judgments,  575,  576 
in  judgments  of  other  states,  603,  650 
cannot  be  conferred  by  consent,  67 
cures  irregularities  in  judgment,  421 
decision  that  court  has,  final,  424 
determination  of,  by  court,  when  final,  409,  410  423 
different  significations  of,  68 

distinction  between  lack  of  and  irregularly  obtaining,  421 
doctrine  as  to  limitation  of  in  various  courts,  407,  408 

stated  as  to  its  effect  on  judgments,  417 
eflfect  of  judgment  rendered  without,  415 

where  court  has  none,  69 
essential  to  valid  judgments  of  foreign  courts,  403,  404 
exclusive  of  probate  courts,  402 

vested  In  courts,  402 
facts  must  be  shown  on  record  of  inferior  courts,  401,  402 
how  it  afi^ects  the  conclusiveness  of  judgments,  409,  410 

obtained,  65 
if  court  has,  irregularities  of,  no  effect,  316,  317 
in  cases  in  rem,  65,  69 

divorce  cases,  638,  650 
inquirable  into,  in  isiferior  courts,  403,  404 
is  authority  to  hear  and  determine,  68,  72 
given  by  law,  67 
right  to  hear  and  determine,  not  determine  without  hearing,  74 

pronounce  judgment  through  due  process  of  law,  70 
the  authority  to  judge  or  administer  justice,  68 
judgments  of  courts  having,  conclusive  upon  same  matter,  142 
limitations  of,  to  various  courts,  407 
limited  to  persons,  place  and  things,  415,  416 
necessary  to  a  valid  judgment,  24,  70 

make  foreign  judgments  conclusive,  572,  573 
valid  judgment  of  another  state,  611 
no  presumption  in  regard  to  inferior  courts,  316 
of  court  not  impeached  renders  judgment  conclusive,  611 
federal  courts  in  bankruptcy  matters,  285,  287 
foreign  prize  courts,  what  dependent  upon,  583,  584 
party  and  process  necessary,  415,  416 
probate  court  renders  proceedings  conclusive,  391 
courts,  379,  402 


are  to  pages.]  InDEX.  1575 

Jurisdiction  {continued). 

of  probate  courts,  when  original,  exclusive  and  general,  391 
superior  courts  will  be  presumed,  413 
the  person,  how  acquired,  65 
U.  S.  bankruptcy  courts,  exclusive,  285,  288 
old  rule  of  as  to  superior  and  inferior  courts,  401,  402 
once  attaching,  is  not  lost  by  arbitration,  402 
over  cause  and  person  necessary  to  valid  judgment,  65,  67 

the  persoQ,  essential  to  valid  judgment,  54,  55 
party  cannot  question  after  bringing  suit  in,  451 
personal  judgments  of  courts  of  exclusive,  143 
plea  of,  admissible  against  judgments  of  other  states,  1436 
presumptions  in  favor  of  courts  of  general,  447 
in  superior  courts,  316 
proceedings  of  courts  may  be  assailed  for  want  of,  415 
question  of,  how  determined,  67,  68 
recital  of  in  record,  conclusive,  418 

of  superior  court,  418 
when  it  cannot  be  attacked,  418,  419 
required  in  courts  whether  superior  or  inferior,  109 
rule  applicable  to  courts  of  general,  66 
should  always  be  found  by  court,  66 
U.  S.  courts  are  of  limited,  143 
upon  what  dependent,  68,  70 
waiver  in  regard  to  as  an  estoppel,  942,  943 
what  courts  can  determine  their,  409,  410 
must  show  their,  409,  410 
is  an  adjudication  of,  423 
when  presumed  in  actions  between  individuals,  410 
a  question  of  fact,  when  conclusive,  419 
it  attaches,  judgment  cannot  be  impeached,  413 

must  appear  on  face  of  record,  409,  410 
shown,  makes  judgment  valid  and  binding,  59,  60 
sufficiently  definite  and  certain,  61 
Jury- 
bound  by  judgments,  in  pleadings,  939 

whether  by  decree  or  judgment,  1412 
evidence  not  allowed  to  contradict  record,  237 

of,  admissible  to  prove  identity  of  subject  matter,  287 
finding  by,  when  disregarded  in  favor  of  an  estoppel,  1441 
trial,  effect  of  failing  to  demand  one,  957 
trials,  waiver  in,  955,  964 

what  to  determine  under  plea  of  res  judicata,  1427 
when  and  when  not  bound  by  estoppel  by  deed,  1438,  1439 
bound  by  judgment,  1434 
record,  1412 


1576  Index.  [References 

Justices  of  the  peace — 

doi'trincs  in  regard  to  their  judgments,  403,  404 
judgments  of,  403,  404 
jdoading  judgment  of,  405 
when  hiible  as  trespassers,  404 
Justinian's 

defmition  of  exceptionea,  76 

K. 

Kentucky — 

doctrine  in  regard  to  judgments  in  ejectment  in,  221 
Kinds — 

of  actions,  28,  38 
estoppel,  1 
judgments,  27 

that  are  conclusive  on  the  whole  world,  115 
res  judicata,  38,  39 
/  may  be  basis  of  action  in  another  state,  78,  79 

records,  21 
Knowledge — 

necessary  to  a  valid  ratification,  1215 

create  an  estoppel  by  acquiescence,  1193 
of  agent  knowledge  of  principal,  1334 

matters  avoiding  policy,  knowledge  of  Co.  1346 

L. 
Laches — 

in  enforcing  one's  right,  when  a  bar,  1360 

when  it  estops  party,  1194 
Land — 

commissioner,  decision  of,  when  conclusive,  525 

oflicers,  decisions  of  when  conclusive,  525 
Landlord  and  tenant — 

application  of  equitable  estoppels  to,  968.  1010 

estoppel  between  binds  their  privies  in  estate,  979,  980 

may  be  barred  from  insisting  on  their  rights,  1005 
Landlord — 

assuming  defense,  when  estopped  by  judgment  in  ejectment,  226 

when  bound  by  same  estoppel  as  tenant,  991,  992 
Landlord's  title — 

tenant  cannot  deny  during  contiuuancy  of  lease,  979 
Language — 

of  vendor,  when  it  creates  an  estopjiel,  1074 
Law — 

does  not  tolerate  second  judgment  for  same  thing,  278 

due  process  of,  7,  71 


are  to  pages,]  IndEX.  1577 

Law  (continued). 

judgments  at,  when  relievable  in  equity,  299 
of  estoppel,  neither  unjust  nor  absurd,  10 
Lease — 

and  release  when  they  work  as  an  estoppel,  816 
binds  all  who  claim  through  or  under  lessee,  835 
by  estoppel  must  bind  both  parties,  840 
indenture,  effect  of,  841 

party  having  no  estate,  when  it  operates  by  estoppel,  839,  840 
does  not  prevent  denial  of  landlord's  title  after  expiration,  847 
estoppel  by,  what  based  upon,  889 
executed  by  agent  of  lessor  binds  him,  846,  847 
making  of,  creates  an  estoppel,  termination  of  ends  it,  992 
of  chattels  creates  estoppel  equal  to  that  of  land,  1014,  1015 
possession  obtained  by  lessee  on  faith  of,  848 
recital  of  in  a  release,  effect  of,  847 

deed  an  estoppel,  756 
title  under  inures  by  way  of  confirmation,  when,  841 
when  after-acquired  title  inures  by  virtue  of,  841 
estoppel  on  acceptors  of,  844 
it  operates  between  parties  by  estoppel,  837 
works  by  estoppel,  must  be  reciprocal,  840 
Leases— 

by  estoppel,  834,  858 

adverse  possession  none  while  occupying  under,  837 

after-acquired  title,  when  it  inures,  834,  836 

apply  where  lessor  has  no  title,  835 

assignee  bound  by,  838 

assignees  concluded  by,  844 

bars  lessee  from  questioning  title,  835 

bind  all  who  claim  under  lessee,  835 

binds  parties  and  privies,  842 

confined  to  parties  to  lease,  842 

do  not  bind  infants  or  married  women,  840 

work  when  they  piass  an  interest,  840 
doctrine  as  leases  by  indenture,  841 

in  regard  to,  835,  837 
heirs  when  not  bound  by,  843 
if  an  interest  passes,  lease  cannot  operate,  841 
infants,  married  women  excluded  from  benefits,  834,  840 
lessee  estopped  by  from  denying  possession,  839 
must  be  by  indenture,  834,  836 

mutual,  834 
nature  of,  839,  840 

none,  if  lessor  has  any  estate  which  passes,  834,  842 
prevents  lessee  from  disputing  lessor's  title,  835 


1578  In^DEX.  [Eeferencea 

Leases  {continued). 

by  estoppel  prevent  lessor  from  avoiding  his  grant,  83G 

parties  from  disputing  lessor's  title,  844 
privies  entitled  to  benefits  of,  844,  845 

in  estate  bound  by,  843,  844 
runs  vvith  land,  842 
what  words  will  create,  846 
when  they  become  operative,  834 

pass  heir's  after-acciuired  interest,  837 
where  lessor  has  no  title  at  time  of  lease,  836,  837 
when  they  become  operative  by  estoppel,  817 
legal  assertion  of  a  right,  when  it  estops  party,  337 

and  equitable  estoppels  based  on  same  principles,  1085 
requisites  to  jurisdiction,  68,  74 
legatee  cannot  accept  and  reject  letter  containing  bequest,  1176 
legatees,  how  affected  by  judicial  proceedings,  182 
legislative  act,  when  an  estoppel  on  state,  811,  812 
legislature  may  by  ratification  bind  state,  1264,  1265 
lender  taking  title  in  name  o^,  on  purchaser,  930 
lessee  and  lessor  must  both  be  estopped,  848,  850 

assignee  of,  estopped  from  disputing  title,  971 
by  lease  or  occupation  cannot  dispute  lessor's  title,  992 
cannot  deny  lessor's  title  in  actions  for  rent,  971 
impeach  title  of  lessor's  assignee,  971 
question  title  of  lessor,  844,  845 
set  up  want  of  title  in  lessor,  839 
estopped  from  questioning  title  in  action  to  recover  rent,  835 
failing  to  notify  landlord  of  suit  in  ejectment  bound,  991 
may  rely  on  want  of  mutuality,  848 
not  bound  by  lease  from  &  femes  covert,  848 

estopped  by  description  of  land  in  lease,  849 
when  estopped  by  deed-poll,  848,  849 

not  estopped  by  deed-poll,  848,  849 
lessee's  title  when  lessor  estopped  from  alleging  want  of,  845,  846 
lessor  cannot  claim  lease  void  for  one  purpose,  valid  for  another,  1176 
set  up  adverse  title  of  another,  992 
estopped  by  receipt  of  rent,  1175,  1176 
letters  testamentary,  effect  of  in  other  states,  38,  86 

grant  of  conclusive,  885 
levying  an  execution  on  goods  bars  setting  up  other  title,  1101,  1102 
Liability — 

of  party  who  is  notified  to  assume  defense,  158 

principal  enforced  on  grounds  of  estoppel  in  pais,  1209 
License — 
.     to  erect  a  dam,  when  estoppel,  1109 

when  party  estopped  from  revoking  it,  1170 


are  to  pages.']  INDEX.  '  1579 

Licensee— 

on  same  footing  as  tenant  to  deny  title,  971,  973 
Licensor — 

bound  by  expenditure  of  money  on  faith  of  license,  1106 

Lien — 

of  vendor,  when  merged  in  judgment,  560 

a  vendor,  when  waived,  965,  966 
representing  property  to  be  free  from,  904 
title  to,  may  be  affected  by  estoppels  in  pais,  2 
may  be  lost  by  operation  of  estoppels  in  pais,  1199,  1200 
Limitation — 

of  estoppel  between  landlord  and  tenant,  979,  988 

equitable  estoppels,  1003,  1008 

estoppel  in  pais  to  notes,  bills,  etc.,  1114,  1115 
of  an  adjudication,  312 

jurisdiction  does  not  imply  inferiority,  399 

the  doctrine  of  estoppel  by  deed,  714,  719 
estoppel  of  judgments,  103 
applicable  to  judgments  in  rem,  358 
as  to  judgments  by  default,  45 

foreign  corporation,  when  estopped  from  pleading,  1390 
of  courts  as  to  various  matters,  72 

doctrine  of  conclusiveness  of  foreign  judgments,  582 
preventing  relief  against  judgments,  463,  464 
to  the  conclusive  effect  of  a  record,  25 

judgments,  24 
waiving  plea  of,  955 

when  Ins.  Co.  estopped  from  pleading,  1352 
on  judgments  of  inferior  courts  as  to  jurisdiction,  407,  408 
Limited — 

nature  of  judgment  does  not  affect  it  as  an  estoppel,  311 

Line — 

of  distinction  between  superior  and  inferior  courts,  409,  410 

Lineal — 

warranty  as  an  estoppel,  816 
Lis  pendens — 

doctrine  of  as  affected  by  judgments,  205,  211,  212 
Listing — 

property  for  taxation,  936 
Litis  contestatio — 79 
Living — 

with  woman  as  \^ife,  estopped  to  deny  relation,  936 
Location — 

of  boundaries  a  question  of  fact,  1268 

boundary  lines  by  legislature  conclusive,  1266 
Lying— 

by  and  permiting  party  to  purchase  property,  1075,  1076 


1580         •  Index.  llie/erences 


M. 

Maker— 

of  accommodation  paper,  when  estopped,  1120 
note,  cannot  deny  existence  of  corporation,  1408 
set  up  defense,  when,  1118 
estopped  by  negligence  in  its  execution,  1128,  1129 
executed  to  raise  money,  bound,  1120,  1121 
"when  estopped  from  setting  up  fraud,  1112,  1113 
telling  party  note  is  all  right,  1121 
Makers — 

joint,  judgment  against,  187 
Man —  • 

cannot  dispute  recitals  in  deed  which  he  accepts,  738,  739 
representing  woman  to  be  his  wife  to  tradesmen,  917,  918 
Mandamus — 

in  application  for,  judgment  cannot  be  impeached,  138 
used  to  enforce  judgment,  therefore  judgment  conclusive,  138 
Manner — 

in  which  deed  operates,  how  ascertained,  709 

of  making  estoppels  available  against  privies,  1439,  1440 

pleading  an  estoppel  by  deed,  1439 
questions  actually  brought  before  the  court  immaterial,  136 
Manufacturer — 

when  estopped  from  denying  validity  of  patent,  775 
Maps — 

of  streets,  etc.,  conclusive  as  to  boundary  lines,  1276,  1277 
Marriage — 

decrees,  dissolution  of  in  other  states,  637,  661 
Married  woman —   . 

acquiescence  of,  when  it  will  be  presumed,  1250 
allowing  husband  to  deal  with  her  ]n-operty,  bound,  1241 
hold  himself  out  as  owner,  1249 
patentee,  1249 
answerable  for  the  frauds  of  her  agent,  when,  1239 
bound  by  allowing  husband  to  mortgage  her  jiroperty,  1249 
becoming  stockholder  in  corporation,  1240 
bringing  suit  to  recover  purchase  money,  1244 
carrying  on  separate  business,  1239 
certificates  of  no  defense,  1237 
deed  fraudulently  entered  into,  1241 

facts  recited  in  a  cause  to  which  she  was  party,  1249,  1250 
participation  in  fraud,  1246 
statement  that  she  is  divorced,  909 
though  agents  and  others  protect  her  interests,  1250,  1251 


are  to  pages.]  INDEX.  *         1581 

Married  woman  (continued). 

bound,  where  husband  manages  her  interests,  1248,  1249 

carrj^ing  on  separate  business  bound  same  as  single.  1233 

conducting  business  by  consent  of  husband,  bound,  1251,  1252 

covenants  of  warranty,  when  not  binding,  716 

failing  to  assert  her  rights  in  judicial  action,  1249,  1250 

inducing  party  to  purchase,  cannot  claim  title,  1243 

liable  for  her  frauds  same  as  single,  1245,  1246 

making  contracts  and  representing  herself  single,  bound,  1284 

may  bar  her  right  of  dower  by  estoppel,  1244,  1245  . 

not  estopped  by  representation  that  she  is  single,  716 

recognizing  title  in  another,  cannot  controvert  it,  1250 

representing  herself  as  widow,  bound,  1255 

to  be  single,  1237 
requirements  which  prevent  claiming  her  rights,  1236 
uniting  with  husband  in  assignment  of  property,  1232 
voluntarily  surrendering  homestead  estopped,  1240 
when  estopped  by  admissions  made  in  court,  1250 
not  allowed  to  contest  mechanic's  lien,  1242 
why  she  should  be  concluded  by  judgments,  189 
admissions  and  representations  of,  which  deceive  others,  1250,  1251 
affected  by  estoppels  in  pais,  1076,  1077 
application  of  equitable  estoppels  to,  1231,  12G0 
bound  by  estoppels  in  pais,  1075 

by  joining  with  husband  in  deed,  716 
judicial  proceedings,  191 
where  they  execute  notes  in  blank,  1248 
contracts  of,  when  validated  by  estoppel,  1251  ' 
conveyaixie,  when  it  operates  by  estoppel,  716 
deed  of,  at  common  law,  effect  of,  715 
when  no  estoppel,  715 
where  it  fails  as  conveyance,  715 
doctrine  and  rules  as  to  judgments,  188,  193 
as  to  estoppel  iiniais,  1233,  1284 
in  N.  Y.  as  to  estoppel  by  deed,  715,  717 
regard  to  in  England,  717 
Missouri,  717 
Oregon,  717 
Pennsylvania,  717 
estopped  by  acquiescence,  1232,  1238 
representations,  1233 
in  cases  of  wrong  or  fraud,  1232 
estoppel  by  deed,  generally  inapplicable  to,  713,  884 
judgments  against  at  common  law,  191 
may  be  bound  by  acts  of  husbands,  1240,  1241 
make  valid  dedications,  1280 


1582  Index.  [Hejerenm 

Married  woman  (continued). 
may  waive  defenses,  192 
not  estopped  by  deeds,  742 

licensed  to  commit  fraud,  1235 
representations  of,  which  bind  thfim,  1235,  1236 
standing  by  and  seeing  costly  expenditures  made,  1237 
aui  juris  bound  by  an  estoppel,  1239 
when  after-acquired  titles,  inures  by  estoppel,  715 
estoppels  by  deed  applicable  to,  716,  718 
not  barred  by  confessing  judgment,  1252 
required  to  execute  their  contracts,  1236 
acknowledgment  to  deeds,  when  conclusive,  731,  735 
Marriott  v.  Hampton— 

case  of,  125 
Master — 

estopped  by  recital  in  indenture,  772 
judgment  against  for  negligence  of  servant,  effect  of,  283 
or  principal,  when  he  may  be  bound,  160 
when  he  can  take  advantage  of  judgment,  335 
Material — 

requirements  of  due  process  of  law,  70,  71 
Matters- 
merged  in  judgment,  res  judicata,  98 
adjudicated  become  part  of  record,  100 
and  acts  which  bind  States,  1264,  1265 

cannot  be  presented  in  different  and  inconsistent  aspects,  1185 
determined  at  law  may  be  a  bar  in  admiralty,  338 
essential  to  jurisdiction,  68,  74 
finrjly  determined,  forever  settled,  133 
in  controversy  once  settled,  final,  100 

issue  are  concluded  by  judgment,  243,  244 
how  identified,  330 

must  be  same  and  between  same  parties,  299 
not  considered  in  supreme  court  not  concluded,  122 

in  issue  not  barred  by  judgment,  105 
of  defense  must  be  set  up  or  they  will  be  barred,  260 
estoppel  alleged  must  be  material  and  traversable,  1425 
coming  from  other  side  need  not  be  stated,  1430 
on  w^hich  estoppels  arise,  when  specially  pleaded,  1436 
once  decided  by  competent  court  not  re-examinable,  121 
determined  cannot  be  again  litigated,  480 
settled  by  judicial  authority  cannot  be  again  litigated,  135 
litigated  cannot  be  raised  in  revivor  of  judgment,  137 
passed  upon  by  judgment  are  concluded,  313,  315 
submitted  to  arbitration,  when  merged  in  judgment,  309 
that  are  waiver  of  proofs  of  loss  by  Ins.  Co.,  1348,  1353 


are  to 2^ages.]  InDEX.  1583 

Matters  (continued.) 

that  might  be  well  pleaded  merged  in  judgment,  825 

have  been  litigated  concluded  by  judgment,  262,  263 
doctrine  illustrating,  276 
merged  in  decree,  478 
waived  cannot  be  raised  in  appellate  court,  953,  954 
which  give  an  estoppel  effect  as  a  conveyance  of  title,  781 

parties  might  have  litigated  merged  in  judgment,  131,  132 
render  foreign  judgments  in  rem  nullities,  583 
would  have  been  a  good  defense  barred,  276 
within  jurisdiction  of  court  adjudicated  on  conclusive,  419 
Maxims — 

on  which  equitable  estoppels  are  founded,  864,  865 
ad  solutionem,  <&c.,  41,  110 

allegans  contraria  non  est  audiendus,  3,  110,  1163 
cessante  rations  leyis  cessat  et  ipsa  lex,  109 
concensis  iollit  errorem,  963 
coram  nonjudlce,  560 

de  non  ajyparentihus  ex  non  existentihits,  eadem  est  lex,  1318 
et  non  quieta  movere,  116,  123 
expedit  reipublicae  ut  sitjiuis  litum,  208,  1414 

expessum  facet  cessare  taciturn,  vox  emissa  volat,  lita  scripa  manet^  709 
fraus  est  celare  fraudem,  1046 
ille  non  hahet,  non  dat^  800 

immohelia  ejus  jurisdictionis  esse  reputantur  ubi  sits  sunts,  580 
interest  reipuhlicae  res  judicatus  non  rescindi,  586,  788,  1412 

ut  sit  finis  litium,  248,270,  273,  352,  396,  459,  552,  586 
infinitum  in  jure  reprohatur,  8 
interest  reipuhlicae  id  sit  finis  litiumy  101,  125,  160 
judicium  a  non  suo  judice  datum  nullius  est  momenti,  34 
juris  dictio   est  potestas  de  puMico   introducta  cum    necessitate,  juris 

decendi,  68 
nemo  deiet  bis  vexari  pro  una  causa,  8 

Ms  punitur  pro  eodem  delicto,  500,  502 

debet  bis  vexari  pro  una  et  eadem  causa,  83,  248,  272,  392,  459 

(si  constat  curiae  quod  sit)  pro  uua  et  eadem  causa, 
502,  587,  1413 
ex  2}roprio  consequitur  actionem,  865 
nihil  aliud  est  jurisdicta,  &c.,  67 
nonfatetur,  que  errat  nisi  jus  ignoravut,  942 

nullus  commodum  capere  potest  de  injuria  sua  propria,  864,  877,  1062 
omnia prcEsumuntur  rite  et  solemniter  esse  acta,  397,  413,  414,  446 
omnis  ratihabitio  retro  trahitur,  et  mandato  mquiparatur,  1310,  1311 

priori,  etc.,  1211,  1215,1310 
prcRsumatur  p>ro  justitia  sententim,  8 
que  protest  et  debet  vetare,  jubet,  865,  1047,  1062 


1584  Index.  [lie/eren^ea 

Maxims  (continued). 

quifacit  j)er  aliiim,  facit  per  se,  940,  1201 

non prohihet  quod  jjrohibere potest,  etc.,  865,  1863 
sentit  commodum,  sentire  dehet  et  onus,  148 
tacet,  consentire  videtur,  865,  1047,  1056,  1063,  1162 
quilibet  potest  rcnunciare  jwi  pro  se  inducto,  207,  272,  961,  963 
quod  non  ajjparet, ^non  est,  &c.,  1318 

semel  placuit  in  electionibus,  amplius  displicere  non  potest,  1175' 
quoties  in  verbis  nulla  est  amhiguitas,  ilia  nulla  expositio  contra  verba 

fienda  est,  708 
res  inter  alios  acta  alteri  nocere  non  debet,  114,  140,  147 

judicatoR  mdlum  uliis  proejudicum  faciajit,  82,  140,  147 
judicata  pro  veritate  accipitiir,  79,  82,  392,  592 
Jiabiiur  inter  pjartes,  79 
sententia  facet  jus,  et  res  judicata,  &c.,  8 
solutio  pretii,  emptionis  loco  hahelur,  334 
8ta7'e  decisis  et  non  quieta  movere,  reasons  for,  116,  123 
transit  in  rem  judicatum,  334 
volenti  non  Jit  injuria,  etc.,  864 
que  tacet,  etc.,  2 
Meaning — 

that  estoppels  must  possess  an  clement  of  fraud,  901 
Mechanic's  lieu — 

married  women  estopped  to  controvert,  when,  1242 
waiver  of,  965,  966 
Members— 

of  corporation,  when  they  cannot  question  its  existence,  1406 
corporations  bound  by  judgments  against,   164 
Merchant — 

concluded  by  act  of  clerk  or  salesman,  1201 
law,  in  regard  to  notes,  bills,  etc.,  1112,   1113 
Merger — 

by  judgment  against  joint  debtor,  564 

liens  or  claim  in  probate  court,  393,  394 
doctrine  of  applicable  in  revivor  of  judgments,  137 
effect  of  judgment  as,  279 

on  parties  and  privies,  279 
first  judgment  rendered  in  two  actions  is,  562 
in  foreclosure  suit,  565 

judgment  against  plaintiff,  561 

of  covenant  of  warranty,  565 
rendered  on  a  compromise,  562 
judgment  on  foreclosure  as,  205 
judgments  of  other  States  as,  602 
of  action  against  one  or  more  members  of  firm,  563 

two  or  more,  when  binds  one  only,  564 


are  to  pages.}  InDEX.  1586 

Merger  (continued) 

of  l)ond  or  contract  in  judgment,  564 

bonds  in  judgment,  550 
cause  of  action  chaugcd  by  matter  of  record,  560 
of  cause  of  action  iu  judgment,  126,  560 

submitted  to  court  in  consent  judgment,  550 
of  defense  in  judgment,  129,  130 
not  litigated,  262,  263 
defenses  that  should  have  been  litigated,  561 
claims  by  acceptance  of  judgment,  49 
foreign  judgments,  where  court  has  jurisdiction,  587,  592 
fraudulent  defenses  in  judgment,  454,  455,  465,  466 
judgments,  doctrine  as  to,  126,  127 
lower  security  into  higher  by  rendition  of  judgment,  565 
matters  iu  judgment,  548,  549 
original  cause  of  action,  124 
partnership  debt,  297 
promissory  note  in  judgment,  559 
usury  by  judgment  against  mortgagor,  1019 
vendor's  lien  in  judgment,  560 
void  contract  in  judgment,  565 
wife's  estate  by  foreclosure,  1020 
operation  of  judgment  as,  559 

where  cause  of  action  in  two  suits  identical,  560,  561 
Merits— 

decision  on  conclusive,  though  pleadings  defective,  332 
judgment  rhust  be  on  to  be  conclusive,  230 

on  in  personal  action  a  bar,  331 
once  settled  by  judgment  is  final,  99 
when  judgment  will  be  regarded  as  rendered  on,  331 
Mesne  i»rofits — 

action  for,  defendant  barred  by  judgment  in  ejectment,  222 
actions  for  recovery  of,  223 

judgments  iu  ejectment  conclusive  against  tenant,  222 
what  conclusive  of,  220 
Method — 

of  ascertaining  whether  judgment  is  a  bar,  30O 
Military  courts  — 

judgments  of,  when  conclusive,  510,  511,  513 
nature  of,  510 

principles  relating  to  judgments  of,  510,  516 
Minnesota — 

conclusiveness  of  judgments  in,  in  actions  of  ejectment,  221 
Minor — 

frudulently  representing  himself  of  age,  bound,  1255 
doctrine  as  to  application  of  equitable  estoppels,  1242 


1586  Index.  [References 

Minor  {continued). 

judgments  against,  when  valid  and  void,  178,  180 

when  estopped  by  receiving  proceeds  of  void  sale,  1231,  1232 
See  Index  Infants. 
Misleading'— 

another,  dealing  with  estate,  1074 
Misnomer — 

failing  to  plead  renders  judgment  conclusive,  298 
Misrepresentation — 

to  officer,  when  it  estops  party,  917 

when  they  will^postpone  mortgages,  1042 
Mistake- 
party  acting  under,  when  estopped,  1080 

questions  of,  when  involved  in  litigation,  conclusive,  98 

and  errors,  how  corrected,  453,  454 

does  not  avoid  judgments  if  court  has  jurisdiction,  316,  318 

furnish  no  reason  for  avoiding  judgments,  125 

of  judge  does  not  affect  judgment,  312 
Mode — 

in  which  estoppel  by  judgment  is  made  available,  1431,  1433 
res  judicata  was  available  under  the  Roman  law,  83 
estoppels  are  made  available  in  insurance  cases,  1335 

of  ascertaining  whether  actions  are  several  or  distinct,  254 
Modification — 

iu  records,  21 

of  ancient  doctrine  of  estoppel,.  12 
judgments  during  term,  50 
Money — 

paid  before  judgment  cannot  be  recovered,  125 
on  judgment  cannot  be  recovered,  536,  538 
Mortgrage— 

acceptance  of,  when  it  waives  lien,  966,  967 

after-acquired  title  inures  in  case  of,  1018 

application  of  estoppel  to,  1018,  1052 

assignee  of,  when  estopped  to  deny  widow's  title,  1022 

assignment  of,  when  mortgagor  bound  by,  1031 

by  husband  and  wife,  conclusive  as  to  title,  1019 

grounds  upon  which  after-acquired  title  passes,  794 

homestead,  when  it  passes  as  an  aftcr-accjuired  title,  798 

instances  of  after-acquired  title  passing  b}^,  704,  800 

intended  to  convey  unincumbered  title,  passes  by  estoppel,  795 

may  be  pleaded  by  estoppel,- 101 8 

of  property  in  breach  of  trust  binds  mortgagor,  1050 

not  owned  at  time  conveyed  b_v  estoppel,  1018 
railroad,  when  it  ]iasscs  after-acquired  property,  802 

party  accepting  cannot  deny  mortgagor's  power  to  make,  1022,  1023 


are  to  pages.']  InDEX.  1587 

Mortgage  (cojitinued). 

party  executing  cannot  deny  title  at  date  of,  1188,  1189 

recital  of  in  a  deed,  effect  of,  749,  750 

record  of,  prior  to  acquisition  of  title  by  mortgagor,  796 

release  of  do'.ver  in,  effect  of,  857 

requisites  to  pass  after-acquired  title,  794,  795 

usury  in,  when  merged  by  judgment,  1019 

validity  of,  when  conclusive  in  actions  of  ejectment,  222 

when  after-acquired  title  passes  by,  794,  800 

under  statutory  provisions,  798 
it  passes  house  subsequently  erected,  801,  802 
which  pass  title  when  acquired,  796 
with  covenant  of  warranty  in,  effect  of,  795 
avoided  by  concealment  and  misrepresentations,  1042 
Mortgagee — 

acting  as  witness  to  subsequent  mortgage,  1034 

acts  which  estop  him  from  asserting  his  title,  1037,  1039 

allowing  additional  loan  of  money,  and  concealing  lien,  1087 

mortgagor  to  sell  property  without  asserting  claim,  1047,  1048 
bound  by  concealing  his  lien  on  property,  1034 
cannot  claim  inconsistent  rights,  1052 

property  sold  by  mortgagor,  1035,  1036 
object  to  sale  after  receiving  proceeds,  1097 
when  cannot  set  up  usury  in  assignment  of  mortgage,  1048 
encouraging  third  person  to  purchase  property,  1041 
estopped  by  consenting  to  sale  of  property,  1041,  1042 

by  relying  on  assurance  of  mortgagor,  1047,  1048 
verbal  agreement  to  satisfy  mortgage,  1032 
exception  to  rule  that  after-acquired  title  inures  to,  799 
fixing  price  without  giving  notice  of  claim,  1051 
how  equity  operates  to  pass  after-acquired  title  to,  800,  801 
in  possession  cannot  repudiate  mortgagor's  title,  1022 
looking  on  and  seeing  owner  convey  property,  1039 
may  lose  his  priorit}-  of  lieu  by  estoppel,  1037,  1038 
postjjoned  to  subsc(]uent  mortgage,  when,  1048 
representing  that  mortgage  is  satisfied,  1036 
seeing  improvements  madf  on  property,  bound,  1068 
statement  of,  when  it  ma}-  be  relied  on,  1036,  1037 
title  may  vest  in,  by  estoppel,  1018,  1019 
when  entitled  at  equity  to  after-acquired  property,  798,  800 
when  estopped  by  recitals,  749 

from  denying  validity  of  prior  liens,  1147 
he  cannot  set  up  title  anterior  to  mortgage,  1022,  1023 
not  permitted  to  assert  his  ownership  at  judicial  sale,  1097 
protected  by  estoppel  in  favor  of  his  lien,  1049 


1588  Index.  [lieferences 

Mort^a^or — 

and  ])iivies cannot  deny  title  of  mortgagee,  1023 
bound  by  assenting  to  transfer  of  mortgagor,  1035 

covenant  from  setting  up  after-acquired  title,  1018 
cannot  plead  failure  of  title  in  purchase  money  mortgage,   1032 

payment  after  giving  certificate  of  no  defense,  1028 
consenting  to  assignment,  cannot  allege  satisfaction,  1050 
estopped  from  denying  existence  of  corporation,  1408 
to  deny  entry,  for  condition  broken,  1050 
title  of  bis  mortgagee,  809,  810 
estoppel  in  pais  applicable  to,  1033,  1034 

of  in  foreclosure  proceedings,  1031,  1032 
executing  mortgage  with  blank  for  mortgagee's  name,  1121 
inducing  party  to  believe  he  will  pay  debt,  bound,  1033 
purchase  certificate  of  sale,  1043 

iucumbmnce,  bound,  1033 
one  to  pm-chase  on  his  statement,  1027 
may  be  bound  by  ratification  from  setting  up  defense,  729 
of  chattel,  when  he  cannot  dispute  mortgagee's  title,  1051 
receiving  proceeds  of  sale  cannot  question  foreclosure,  1050 
tenant  of,  cannot  dispute  title  of  execution  pui-chaser,  1021 
vendee  of,  cannot  dispute  title  of  execution  purchaser,  1022 
when  cannot  deny  receipt  of  consideration,  1031 

estopped  from  setting  up  forfeiture  of  charter,  1405 
to  claim  moi'tgage  fraudulent,  1031 
plead  usury,  1019 
his  title  passes  by  estoppel,  1018 
Mother— 

when  estopped  from  disputing  her  son's  title,  999 
Motion — 

overrulin^i-,  effect  of,  283 

application  of  principle  of  7'es  judicata  to,  570 

decisions  on,  which  are  final,  5G9 

nature  of,  5G8 

that  become  res  judicata,  569,  570  , 

cannot  be  renewed  under  rule  of  res  judicatay  570 
variety  of,  508 
Motive —  t 

of  party,  effect  of  in  equitable  estoppels,  881 
Municipal — 

corporations,  application  of  estoppels  w /)a2«  to,  1363 
bonds  irregularly  issued,  when  valid,  1381 

judgment  on,  merger  of,  549 
corporation,  judgment  against  on  bonds,  effect  of,  563 

on  bonds,  effect  of,  503 
corporations  bound  by  ratifying  acts  of  officers,  1218 


are  to 2}(iges.]  InDEX.  1589 

jUunicipalities — 

canuot  attack  judgments  in  proceedings  by  mandamus,  138 
estopped  as  against  bona  fide  holders  of  bonds,  1371 

by  recitals  in  bonds,  1371,  1383 
when  estopped  denying  power  to  issue  bonds,  1371 
Jffnnicipality — 

bound  by  issuance  of  negotiable  securities,  1371 
cannot  deny  excessive  issue  of  bonds,  1374,  1375 

ownership  of  property  taxed  to  party,  1364 
Mntaal — 

estoppel  between  mortgagor  and  mortgagee,  1297 

by  deed  must  be,  719,  742,  743,  834 
occupation  of  land  in  conformity  to  agreed  boundary  line,  1273 
Mutnality — 

a  necessary  ingredient  of  estoppels,  1011 

rule  of  estoppels,  146 
of  equitable  estoppels,  921 
estoppels,  483,  834,  848,  850 

by  judgment,  defined,  242 
necessary,  14 

K 
Naturalization — 

case  judgment  in,  a  bar,  107 
of  an  alien,  conclusive,  348 
Nature — 

of  a  common  law  dedication,  1281 
an  equitable  estoppel,  6,  7 

doctrine  precluding  surety  questioning  bond  delivered,  1139, 1147 
estoppel,  1 

in  jiais  affecting  title  to  land,  1054 
foreign  judgment  sued  on  in  other  States,  587 
judgments  where  there  is  no  issue  to  be  decided,  27 
plea  of  res  jtidicata  in  the  Roman  law,  77,  96 
proceedings  in  attachment  and  garnishment,  352,  372 
proof  required  to  create  equitable  estoppels,  871 
questions  and  dispute  may  be  shown  by  parol  evidence,  107 
records  in  ancient  times,  18,  19  * 

Naval  courts-martial — 

conclusiveness  of  judgments  in,  511 
doctrine  in  regard  to,  511 
Necessity — 

of  suitors  having  their  cases  properly  presented,  128,  129 
that  identical  questions  litigated  in  estoppel  of  record,  242 
Neglect— 

of  parties  to  set  up  their  defenses,  277,  278 


1590  IlfDEX.  [Be/erences 

Neglecting' — 

defense  in  partition  suit,  304 
Negligence— 

estoppels  by,  882 

in  asserting  one's  rights,  when  a  bar,  1360 

executing  deed,  when  it  may  be  an  estoppel,  712 

of  parties  in  executing  papers,  1128,  1129 
no  defense  to  judgment,  128,  129 
party  in  pleading  an  estoppel,  effect  of,  1438,  1439 
principal,  when  an  estoppel  in  pais,  1210,  1211 

rule  in  regard  to  estoppels  by,  882 

when  it  creates  an  estoppel,  6,  880,  881 

to  land,  1063,  1064 
Negligently- 
allowing  bailee  to  deal  with  goods  as  owner,  1104 

enabling  another  to  appear  as  owner,  1103,  1104 

signing  deed,  supposing  it  to  be  lease,  1129 

standing  by  and  allowing  another  to  act,  899 
Negotiable- 
certificates,  owner  of,  when  estopped  to  claim  title,  1103 

paper,  estoppel  of,  party  to,  1126,  1127 
New  Jersey— 

conclusivenesii  of  judgment  in  ejectment  in,  220 
New  matter — 

when  former  adjudication  must  be  pleaded  as,  1425 
Nil  debet— 

not  a  good  plea  to  judgment,  1435 

plea  of  on  judgment  of  sister  State,  666,  667 
No  estoppel — 

where  deed  couvej^ed  title,  820 
the  interest  passes,  25 
No  man — 

can  be  tried  twice  for  same  oflense,  485,  507 

shall  take  advantage  of  his  own  wrong,  877 
No  matter — 

how  irregular  proceedings  where  court  has  jurisdiction,  316,  317 
No  person — 

can  recover  against  his  own  claim  or  covenant,  809 
Non  claim- 
effect  of,  in  deed,  789,  790 
Non  est  factnm— 

judgment  on  plea  of,  326 
Not— 

absolutely  essential  that  successive  causes  be  the  same,  96 
Note- 
judgment  on  firm,  conclusive  as  to  partnership,  231 


are  to  pages.]  InDEX.  1591 

Note  (continued). 

judgment  on  one,  conclusive  in  action  on  another,  232 
merger  of,  in  judgment,  559 

statement  that  maker  has  no  defense,  lllG,  1117,  1120 
Notice — 

essential  to  a  valid  judgment  in  rem,  345 

given  to  parties  to  assume  defense,  binds  them,  162,  163 

of  some  kind  necessary  to  jurisdiction,  74 

or  citation  necessary  in  personal  judgments,  71^  72 

requisite  to  vahd  foreign  judgment,  582 

personal  judgment,  311 
to  agent  is  notice  to  corporation,  1345 
covenantor  or  indemnitor,  162,  163 
defend,  how  given,  160 
parties  liable  over,  effect  of,  157,  160 

to  make  judgments  binding  on  them,  200,  202 
party  requisite  to  judgment,  51 
Notiflcation — 

to  party  to  assume  defense  of  action,  157 
Nullity— 

and  irregularity,  the  distinction  between,  58 

cannot  be  waived,  irregularity  may,  64 

defined,   64 

foreign  judgment,  when,  571 

grant  of  letters  on  estate  of  living  person,  51 

judgment  against  party  not  served  is,  50,  51 

if  improi)erly  entered  by  clerk,  when,  51 
when  judgment  rendered  by  a  justice,  is,  51 
Nnl  tiel— 

record,  effect  of  plea  of  to  judgment,  1435 
judgment  on  plea  of,  298 
plea  of,  on  judgment  of  sister  state,  666,  667 
the  only  plea  in  action  on  judgments,  1435 
Nunc  pro  tunc — 

entry  of  judgment  final,  550 

0. 

Object— 

of  admitting  parol  evidence  to  aid  record,  112 
making  person  a  party  to  an  action,  478 
Objections — 

that  judgment  is  without  jurisdiction,  may  be  plead,  1431 
Obligation — 

created  by  estoppel,  binds  parties  and  privies,  950 
Obligor — 

in  bond,  when  estopped  by  acts  of  principal,  1137 


1592  IXDEX.  [References 

Oblig'or  (continverT). 

in  bonds  estopped  by  recitals,  767,  772 
Obtaining — 

loan  from  corporation,  estops  party  from  denying  its  power,  1409 
Occiipaliou — 

by  i)ermission  of  another,  binds  party  in  possession,  992 
Occiipyingr— 

land  in  conformity  to  an  agreed  line,  1267 
Odious — 

when  are  estoppels  said  to  be,  10 
Offenses— 

indivisible,  494 
Officers- 
acts  of,  when  binding  on  states,  1264,  1265 
collecting  money  cannot  dispute  judgment,  337,  338 
cannot  contradict,  their  return,  539,  546,  762 
return  cannot  be  impeached  collaterally,  539,  546 
conclusive  as  against  strangers,  539,  546 

to  competency  of  appraisers,  539,  546 
date  of  receipt  of  writ,  539,  546 
in  federal  courts,  539,  546 
of  sale  of  land,  539,  546 
on  courts,  539,  546 

parties,  539,  546,  761,  762 
to  show  defendant's  title  to  property,  539,  546 
doctrine  in  various  states  as  to,  539,  546 
exceptions  to  the  rule  of  conclusiveness,  539,  546 
principles  applicable  to,  539,  546,  761,  762 
policy  of  the  law  in  regard  to,  539,  546 
where  it  may  be  collaterally  attacked,  539,  546 
when  they  cannot  question  validity  of  discharge,  1197,  1198 
Offices— 

of  estoppels  at  law,  11 
Official- 
accepting  reduction  of  salary  cannot  claim  any  more,  1198 
bonds,  sureties  on,  how  aflected  by  judgments,  169,  178 
Ohio- 
conclusiveness  of  judgments  in  ejectment  in,  222 
Old- 
rule  of  jurisdiction,  401,  402 

law  in  regard  to  estoppel  by  deed,  787,  788 
Omissions — 

of  attorneys  in  trials,  when  conclusive,  951 
to  assert  title,  when  an  estoppel,  1082,  1083 
Omitting — 

to  object  to  evidence  on  trial,  051 


are  to  pages.]  InDEX.  1593 

One- 
action  only,  when  maintainable,  249,  250 
cannot  be  twice  tried  for  the  same  crime,  493 
judgment  in  ejectment,  where  conclusive,  220,  231 
led  by  silence  to  make  expenditures  may  claim,  1077,  1078 
not  bound  by,  cannot  take  advantage  of  an  estoppel,  710  / 

Operation — 

of  foreign  attachment  as  proceeding  in  rem,  372 
judgment  as  an  estoppel,  110 
merger,  559,  565 
Opinion — 

of  court,  when  it  may  aid  decree,  470 
Oral- 
evidence  may  be  received  to  prevent  defense  of  res  judicata,  113 
testimony  admissible  in  plea  or  bar,  under  general  issue,  1417 
Order — 

of  sale  conclusive  as  to  facts  alleged,  304 
court,  when  conclusive,  41 

record  cannot  be  contradicted  by  extrinsic  proof,  23 
made  in  a  cause,  when  conclusive,  306 
Ordinary — 

and  extraordinary  effects  of  an  estoppel,  777,  781 
Origin — 

and  nature  of  estoppel  between  landlord  and  tenant,  980,  982 
record,  18,  20 

the  plea  of  res  judicata,  77,  96 
nature  and  object  of  estoppel,  1,  16 
of  equitable  estoppel,  865,  866,  872 
estoppel,  1 

the  doctrine  of  election,  1158,  1164 
plea  of  judgment  recovered,  77,  96 
Orphans'  conrts — 

proceedings  of,  are  mi  rem,  348 
Otlier— 

insurance,  waiver  by  agent  binding  on  company,  1344,  1345 
Overruling— 

motion,  effect  of,  283 
Owner— 

accepting  damages  for  R,  R.  cannot  set  up  ii-regularity,  1288 

ratifies  illegal  condemnation  proceedings,  1289 
allowing  his  goods  to  be  sold  by  third  person,  1101 
by  allowing  construction  of  railroad  through  his  land,  1095 
cannot  assert  title  after  permitting  another  to  sell  his  property,  1099 
enabling  another  to  hold  himself  out  as,  1103,  1104 
failing  to  claim  damages  after  notice  cannot  question  proceedings,  1289 
may  estop  himself  from  questioning  dedication,  1288,  1289 


1594  In'DEX.  [References 

Owner  (continued). 

of  land  may  preclude  himself  from  asserting  his  title,  1057 

when  precluded  to  deny  title  of  execution  purchaser,  729 
negotiable  certilicates.  when  estopped  to  claim  title,  1103 
non-negotiable  instruments,  when  he  cannot  assert  his  title,  1030 
standing  by,  when  estopped  in  regard  to  land,  1064,  1065 
when  he  cannot  recall  declarations  as  to  boundaries,  1267 
OTTiiersIiip— 

party  estopped  by  recitals  of,  764 

P. 
Parent — 

allowing  his  minor  son  to  collect  his  wages,  921 
Parol— 

adjustment  of  boundaries,  when  conclusive,  1270 
dedication  may  be  made,  1280 

evidence  admissible  in  aid  of  judgment  in  replevin,  294 
to  aid  a  record,  234 

exclude  matters  from  operation  of  judgment,  259 
identify  the  parties.  234,  235 
show  subject  of  former  action  different,  259 
when,  and  for  what  purpose  admissible  to  aid  a  record,  234,  235 
admitted  to  limit  estoppel,  but  not  enlarge  it,  312 
inadmissible  to  contradict  record,  243 

take  matters  out  of  a  judgment,  245 
to  show  nature  of  question  decided.  111 
when,  and  not  admissible  as  to  written  instruments,  1444 
necessary  to  aid  the  estoppel  of  a  record,  243 
not  admissible  to  aid  record,  328,  329 
partition,  when  parties  estopped  from  denying,  1290 
promise  to  an  assignee,  when  conclusive,  1112 
proof  admissible  to  aid  an  estoppel,  103,  111 
Part- 
payment  before  judgment  no  defense  in  action  to  revive,  138 
Particular- 
questions  adjudicated  are  conclusive,  97 
recitals  are  conclusive,  711 
Partition — 

conclusive  effect  of  recital  of  service  in  decree,  306 
distinction  between  ])roceedings  in  law  and  chancery,  306 
final  and  conclusive,  303,  307 

judgments  and  decrees  in  actions  for,  conclusive,  303,  307 
for,  effect  of.  when  executed,  306 
in  actions,  not  subject  to  collateral  attack,  305 
when  conclusive  on  entire  title,  303 

it  binds  unknown  owp<>rs,  303,  304 


are  to  pages.]  InDEX.  1595 

Partner — 

judgment  against,  when  conclusive  of  partnership,  271 
may  be  estopped  denying  partnership,  1230 

bind  firm  by  representation,  1228,  1229 
jude:ments  against  two  parties  as,  335,  336,  563 
Partnersliip — 

allowing  one  partner  to  transact  its  business,  894 
contract,  judgment  on  as  merger,  297 
matters  affected  by  estoppels  in  pais,  1227,  1231 
Party- 
accepting  benefit  under  deed  confirms  it,  1177 

will  cannot  dispute  testator's  right,  1185 
reject  its  provisions,  1187 
corporate  office,  estopped  to  deny  its  legal  existence,  1402 
damages  cannot  question  dedication  of  highway,  1288,  1289 
from  cor]ioration  waives  illegality,  1360 
with  knowledge  of  irregularities,  1167 
deed  cannot  set  up  an  outstanding  title,  728,  729 

reciting  prior  conveyance  cannot  impeach  it,  750 
with  recitals  cannot  deny  validity  of,  750 
goods  without  brands  cannot  object  to  omission,  1153 
insurance  policy  cannot  deny  its  conditions,  1167 
lien  cannot  question  consideration  thereof,  750 
performance  different  from  that  contracted,  1149 
proceeds  from  an  improper  sale  ratifies  it,  1197 
acknowledging  receipt  of  property  estopped  to  deny  it,  1191 

the  benefit  of  contract  cannot  repudiate  it,  1153,  1154 
title  in  another  cannot  set  up  his  own.  931 

of  another  cannot  claim  by  adverse  possession,  1295 
acquiescing  in  representations  in  prospectus,  bound,  1194 
acting  as  oflBcer  admits  he  is  member  of  corporation,  1403 

cannot  deny  his  official  character,  1402 
active  in  organizing  corporation  cannot  question  its  legality,  1401 
administrators  as,  how  bound  by  judgments,  180,  181 
affirming  a  voidable  contract  bound  by  it,  1150 
after  judgment  cannot  revive  matters,  99 
agreeing  to  waive  right  of  redemption  cannot  enforce  it,  1169 
allowing  another  to  appear  as  owner  to  set  up  title,  1104 

secure  loan  without  asserting  a  lien,  1097,  1098 
appearing  in  court  and  contesting  matters  bound,  479 
and  all  who  he  represents,  bound  by  judgments,  148 
privies  bound  by  estoppels,  14 

in  pais,  921 
judgments  of  various  courts,  109 
matters  adjudicated,  135 
recitals  in  deeds,  741,  742,  758 


1596  Index.  [References 

Party  (continued). 

and  privies  can  use  judgments  to  try  title  to  land,  230 
concluded  by  judgment  in  ejectment,  223 
how  far  bound  by  judgments,  124 
only,  claim  benefit  of  res  judicata,  1418,  1426 
appearing  in  suit,  when  bound,  208 

attending  meeting,  and  acquiescing  in  election  of  officers,  1402 
as  against  creditors,  cannot  plead  fraud  in  subscriptions,  1400 
asking  for  appointment  of  guardian,  cannot  deny  power  of  court,  451 

appraisers,  cannot  set  aside  proceedings,  949 
assigning  mortgage  on  his  own  land  cannot  defeat  it,  1049 
assuming  defense  in  an  action,  bound,  226 

to  act  as  agent,  cannot  claim  he  was  acting  for  himself,  1221 
deny  it  against  employer,  1169 
before  competent  tribunal  concluded  by  the  judgment,  278 
bidding  at  sale  of  his  goods,  cannot  question  purchaser's  title,  916 
binds  himself  by  his  seal,  T09,  710 
bondholder,  when  bound,  167 

borrowing  money  from  corporation  cannot  deny  right  to  make  loan,  1896 
bound  by  adopting  signature  written  for  him,  711,  1203 
decree  of  foreclosure,  1021 
estoppels  in  pais,  1095,  1096 

negligently  signing  papers  without  examination,  1128,  1130 
private  acts,  by  obtaining  their  passage,  1198 
recital  of  official  character  of  principal,  1398 
the  estoppel  of  an  election,  1183 
written  admissions,  948 
words  used  and  adopted  in  instrument,  902 
when  appearing  by  agent  or  rejjresentatives,  164 
bringing  suit  affirms  sale,  and  cannot  question  it,  1171 
buying  land  for  less  than  value  on  account  of  lien,  cannot  deny  it,  1199 
bj'  acting  on  voidable  contract,  cannot  repudiate  it,  1 IGO 
appearing,  cannot  question  jurisdiction  of  court,  451 
bringing  suit  for  price  of  goods,  cannot  set  up  fraud,  1180 
insuring,  estopped  to  deny  corporate  existence,  1359 
obtaining  extension  of  time,  cannot  deny  holder's  title,  1135 
one  benefited  by  prosecution  of  action  is,  159 
cannot  accept  purchase  money  and  retain  the  property,  1167 

acknowledge  boundary  line  in  one  capacity  and  deny  it,  1269 
adopt  part  and  reject  rest  of  a  transaction,  927 

that  which  is  beneficial  and  reject  rest,  1163 
affirm  and  disaffirm  an  entire  contract,  1150 
avoid  his  own  deed,  712 

judgment  by  plea  of  fraud,  336 
benefit  by  and  repudiate  an  instrument,  1176 
"blow  hot  and  cold,"  1163,  1106 


are  to  pages.}  InDEX.  1597 

Party  {continued^. 

cannot  claim  as  shareholder  and  repudiate  his  obligation,  1401 
under  instrument  without  confirming  it,  1166 
collaterally  plead  fraud  in  organization  of  corporation,  1398 

raise  questions  of  forfeiture  of  charters,  1381 
complain  of  default  he  has  caused  or  sanctioned,  1148 
defend  for  failure  of  title  and  retain  land,  1171 
deny  a  forged  signature  adopted,  1123 

boundary  where  he  sold  up  to  such  line,  1270 

character  of  securities  he  ha«  borrowed  money  on,  1188 

deed  does  not  express  its  design,  755 

his  consent  to  judgment,  49 

recital  of  facts  in  his  deed,  711 

title  of  one  from  whom  he  agrees  to  purchase,  1*294 

validity  of  sale  made  by  his  agent,  1100 

title  under  which  he  claims,  1009 
escape  natural  interpretation  of  language  used,  902 
hold  county  funds  and  refuse  to  account  for  it,  1171 
impeach  title  or  decree  he  has  relied  on,  1186,  1187 
maintain  action  on  cause  which  constitutes  good  defense,  260 
mend  his  hold  in  judicial  proceedings,  947 
multiply  costs  by  bringing  separate  suits,  249 
occupy  inconsistent  positions,  bound  by  election,  1177 
plead  defects  in  organization  against  assignee  or  receiver,  1400 

inconsistent  matters,  336 
raise  questions  adjudicated  in  reviving  judgments,  137 

that  might  have  been  litigated  in  former  suit,  277 
recover  on  parts  of  indivisible  claim,  248 

what  might  have  been  recovered  in  first,  278 
retain  and  repudiate  a  transac:tion  at  the  same  time,  1188 
benefit  and  repudiate  the  transaction,  1170 
proceeds  of  sale  and  property  also,  928 
set  up  another's  act  unless  he  has  been  misled,  1092 
state  one  case  in  pleading  and  prove  difTerent  one,  1411 
take  advantage  of  defense  he  neglects  to  plead,  1 28,  130 

under  a  will  and  claim  in  opposition  to  it,  1176 
treat  a  contract  as  subsisting  and  rJso  void,  1164 
one  as  wrong-doer  and  affirm  his  acts,  1172 
citizens  of  municipalities,  when  bound,  are,  166 
claiming  as  owner  of  goods,  estopped  to  deny  validity  of  levy,  1191 
benefit,  must  abandon  every  right  to  defeat  it,  1177 
by  paramount  title,  not  bound  by  recital,  741 
estoppel  must  be  ignorant  of  true  state  of  title,  1081 
through  same  person,  estopped  to  question  title,  1013 
title  by  estoppel  may  maintain  trespass,  1440 
from  one  person  as  a  common  source,  728 


1598  Index.  {Beference* 

Party  {continued). 

claiming  to  be  an  oflBcer,  cannot  denj-  legality  of  appointment,  917 
under  a  person,  when  concluded,  921,  922 

tenant  by  purchase  or  otherwise,  bound,  989 
deed  reciting  mortgage,  cannot  deny  it,  750 
one  bound  by  dedication,  bound,  1280 
the  same  grantor,  bound,  788,  752 
by  estoppel  must  be  precise  and  clear,  1440 
concealing  an  incumbrance  on  property',  1034 
concluded  by  cause  of  action  stated  in  pleadings,  251 

terms  of  deed  or  contract,  709 
bj'  conducting  himself  in  particular  manner,  bound,  6 
consenting  that  legal  title  should  be  passed  to  another,  1082 

to  loan  of  money,  when  waiver  of  priority  of  lien,  1167 
collecting  corporate  bonds  cannot  deny  principal's  right  thereto,  1384 
contracting  as  principal  cannot  show  he  is  surety,  1134,  1135 

in  view  of  ordinance,  cannot  question  its  validitj'^,  1168 
to  convey  land,  cannot  set  up  after-acquired  title,  737 
with  a  corporation,  admits  its  legal  existence,  1396,  1397 
another,  cannot  set  up  his  intirmity,  1260,  1261 
corporation,  cannot  deny  acceptance  of  charter,  1396 
its  existence,  1320,  1396 
that  legal  incoi-poration,  1399 
co-trespassers  as,  193 

court  will  examine  record  to  ascertain  who  are,  157 
dealing  with  property  as  his  own  cannot  rescind  sale,  1180 
delivering  goods  cannot  sue  for  price  and  recover  goods,  1150 
demanding  proceeds  of  sale  admits  its  legality,  1199 
depositing  securities  as  assets,  cannot  deny  company's  title,  1397 
deriving  title  by  descent  or  purchase  from  same  source,  978 
doctrine  of  the  Koman  law,  as  to,  182,  186 

during  occupation  of  premises  cannot  dispute  title  of  landlord,  970 
electing  candidate  cannot  complain  ot  his  election,  1166,  1167 
employing  counsel,  bound,  167 

encouraging  another  to  make  expenditures  on  land,  106-2 
entering  on  land  as  purchaser  cannot  question  title  of  vendor,  1008,  1009 
eijtopped  by  admissions  on  which  others  have  acted,  938 
estoppel  of  by  confirming  fraudulent  deed,  1188 
estopped  by  covenants  of  warranty,  749 
failure  to  object  to  deed,  948 
fraudulent  conveyance,  712 
judgment  from  disputing  its  correctness,  219 
to  deny  that  deed  conveys  title,  lo09 
by  judgment  on  default,  47 

receiving  proceeds  of  sale  from  agent  or  attorney,  1191 
from  claiming  benefits  of  contract  of  sale,  1079 


arc  to  pages.]  InDEX.  1599 

Party  {continued). 

estopped  from  denj'ing  that  intention  manifested  was  real,  902 
disputing  title  of  unnamed  landlord,  973 
pleading  no7i  est  factum  to  note,  948 
setting  up  that  maker  is  fictitious  person,  1133 
to  canvass  matters  once  adjudicated,  99 

deny  judgment  rendered  on  day  of  date,  306 

mortgage  on  partnership  property,  1050,  1051 
operation  of  deed  as  intended,  781 
set  up  any  matters  outside  of  written  contract,  1149,  1150 
secret  title  against  tonafide  purchaser,  1056 
executing  bonds  estopped  by  recitals  therein,  767,  772 

chattel  mortgage  cannot  claim  property  is  real,  1168 
mortgage  cannot  deny  delivery  of  title  deeds,  1188,  1189 
failing  to  defend,  how-  concluded,  48 
except,  estopped,  952 
plead  fraud  in  service  estopped,  547,  549 
misnomer  bound  by  judgment,  298 
when  estopped  from  denying  legality  of  corporation,  1397 
giving  certificate  estopped  from  denying  receipt  of  goods,  1017 
going  into  possession  of  land,  estopped,  728 
guilty  of,  cannot  complain  of  negligence  of  his  adversary,  1428 
guaranteeing  bonds  estopped  from  denying  his  liability,  1117 
has  a  right  to  appear  and  be  heard,  71 
having  his  election  to  aflBrm  or  disaffirm  must  do  so,  1163 
no  opportunity  to  be  heard  not  bound,  110 
right  to  repudiate  or  affirm,  when  bound,  1172 
hiring  goods  estopped  from  denying  title  of  lessor,  1017 
how  prevented  from  taking  advantage  of  judgment,  336,  343 
holding  possession  under  another,  cannot  dispute  title,  972 

bonds  of  corporation  cannot  dispute  its  existence,  1401 
mortgage  in  one  capacity,  to  assert  holding  it  in  another,  1C48 
themselves  out  as  corporations  cannot  question  it,  1321 
in  actions  to  try  title  bound  by  recitals,  in  deed,  752 
law,  blood  and  estate,  bound  by  estoppels,  14 
possession  by  permission  of  another  cannot  dispute  his  title,  992,  993 

under  lease  cannot  dispute  title  of  lessor,  989,  990 
prize  cause,  who  are,  574 
incurring  debt  to  corporation  cannot  plead  forfeiture,  1399 
inducing  an  officer  to  attach  property  as  that  of  another,  920 

one  to  purchase  under  a  voidable  sale,  1095 
infants  and  minors  as,  178,  179 
joint  debtors  or  joint  creditors,  as,  187 
judgment  against  his  interest  is  bound,  297 

merges  joint  cause  of  action,  564 
one  not  a  void,  52 


1600  Index,  [Se/erences 

Party  (continued). 

judgment  need  not  be  against  him  by  name,  297 
knowing  stipulation  to  be  cxcludoil  from  writing,  1149 
leaving  negotiable  securities  with  agent,  must  suffer  loss  if  any,  1191 
land  sold  on  execution  cannot  deny  his  title,  938 
making  election,  bound  to  abide  by  it,  1178,  1186 
no  defense  barred,  2GI 

partial  payment  cannot  repvidiate  contract,  1130 
manufacturing  to  sell  machines  on  royalty  cannot  disiJutc  patent,  1153 
married  women  as,  188 

doctrine  in  regard  to,  188,  193 
may  be  estopped  by  negligence  in  executing  deed,  712 
bind  himself  by  any  name  he  may  adopt,  711,  1203 
by  his  conduct  debar  himself  from  asserting  title,  1055,  1056 
prove  that  precise  question  has  been  decided,  1431 
rely  on  boundaries  pointed  out  by  r.djacent  owner,  1267 
show  by  parol  evidence  mutters  adjudicated.  111 
take  advantage  of  estoppels  in  pais  without  pleading  1446,  1447 
members  of  church  organizations,  are  bound,  107 
must  act  affirmatively  on  instrument  to  be  bound,  902 

be  consistent,  not  contradictory  in  position  he  takes,  1165 
same  to  plead  a  judgment  as  a  bar,  88,  94 
sni  juris  to  create  estoppel  by  deed,  714 
choose  between  inconsistent  rights  and  remedies,  1172,  1173 
have  his  day  in  court,  201,  203 

knowledge  to  be  estopped  by  acquiescence,  1193 
opportunity  to  be  heard,  51,  52,  71,  156 
plead  or  he  waives  all  questions  of  jurisdiction,  451,  452 
present  all  their  defenses,  125 
making  an  election,  bound  by,  1173 
not  allowed  to  contradict  record,  22,  23 
dispute  his  own  deed,  710 
question  legality  of  corporate  elections,  1306 
recover  land  he  encourages  another  to  buy,  1079 
set  up  his  own  iniquit}^  as  a  defense,  1255 
bound  by  a  judgment  when  he  has  no  notice,  156 
estopped  from  2)lcading  a  just  defense,  1428 

to  plead  a  general  issue,  1427 
permitted  to  charge  his  own  fraud  on  another,  4 
contr-adict  judgment,  75 
play  fast  and  loose,  1171 
required  to  know  that  representations  arc  false,  900 
notified  to  appear  and  defend  cannot  question  jurisdiction,  451 
neglecting  to  make  his  defense,  loses  it,  278 

plead  defense  will  be  concluded  in  equity,  260 
object  in  making  a  person,  to  a  suit,  479 


are  to  pages.]  IndEX.  IGOl 

Party  {continued). 

obtaining  judgment  against  corporation  cannot  deny  its  capacity,  1359 
order  from  court,  bound,  300 
relief  on  one  basis  cannot  litigate  matter,  312 
possession  by  collusion  bound  same  as  tenant,  999 
occasioning  loss  cannot  deny  title  of  finder  of  property,  1130 
or  vendor  signing  a  contract  bound  by  signature,  1149 
participating  in  sale  of  note  or  bond,  1117 
paying  or  accepting  rent,  when  estoi)ped,  1173,  1174 
performing  acts  under  contract  bound  thereby,  1149 
•  perpetrating  fraud  cannot  avail  himself  of  a  judgment,  455 
person  who  is  regarded  as,  140 

placing  negotiable  paper  in  hands  of  broker,  must  suffer  loss,  893 
pleading  an  estopjiel  in  pais  must  show  what,  1449 

not  bound  to  anticipate  adversary's  pleas,  '1430 
must  be  adversely  affected  by  it,  1419 
former  adjudication  need  not  state  presumptions  of  law,  1430 
judgment  need  not  allege  it  is  in  full  force,  1430 
ownership  cannot  set  up  another  title,  949 
title  in  partition  cannot  deny  his  allegations,  1290 
pledging  goods  he  does  not  own,  938 

pointing  out  jiroperty  as  belonging  to  execution  debtor,  929 
preventing  bidding  at  judicial  sale  cannot  claim  deficienc}',  910 

performance  of  contract,  cannot  take  advantage  of,  1148,  1149 
procuring  another  to  convey  his  property,  when  bound,  1081,  1082 

perform  an  official  act,  1188 
ratifying  a  note  made  in  his  name  by  another,  1130 
receiving  benefits  must  bear  burden  of  judgment,  337 

possession  from  tenant  cannot  dispute  lessor's  title,  973 
property  from  corporation  cannot  plead  ultra  vires,  1399 
recognizing  and  sanctioning  signature  of  another,  bound,  1214 

or  assuming  payment  of  lieu  cannot  question  it,  750,  751 
registered  as  stockholder  estopped  as  against  creditors,  1399,  1400 
relying  on  correctness  of  certificate  cannot  impeach  it,  1152 

judgment  must  show  matters  have  been  litigated,  307 
representing  instrument  to  be  a  binding  obligation,  lllG 

as  secured  by  first  mortgage  cannot  deny  it,  1136 
that  note  is  good  to  one  about  to  purchase  it,  1110 
required  to  use  full  diligence  in  presenting  their  causes,  278 
requisites  to  make  a  person,  15(i 
responsible  to  defendant,  w'hen  bound,  159 
seeing  property  sold  under  defective  execution,  bound,  937 
seeking  aid  of  court  cannot  question  its  jurisdiction,  451 
sending  telegram  cannot  deny  knowledge  of  conditions,  1154 
served  with  process  cannot  attack  judgment,  for  fraud,  547 
setting  up  estoppel  must  be  free  from  negligence,  1057 
101 


1G02  Index.  {Referencea 

Party  {continued.) 

signing  and  delivering  instrument,  cannot  question  it,  1138,  1147 
telegraph  messages  bound  by  the  terms,  1 154 
subscription  to  stock  cannot  set  up  fraud,  1397 
sued  by  corporation  cannot  plead  ^iltra  vires  to  its  contract,  1320 

Avrong  name,  effect  of  judgment  on,  208 
suing  under  dilTereut  capacities,  not  the  same,  94 

in  representative  capacity,  when  not  bound,  94 
sufTering  expenditures  under  an  erroneous  opuiion  of  title,  1082 

property  to  be  sold  by  sherifl[,  1259,  1260 
selling  property,  receiving  consideration  caimot  set  up  illegality,  1150 
standing  by,  and  allowing  his  property  to  be  mortgaged,  1034 

seeing  another  mortgage  his  property,  bound,  1052 

building  or  work  done  iu  silence,  10G8 
advising  purchase  estopped  to  set  up  title,  lOoG,  1057 
witnessing  an  illegal  levy,  937 
state  as,  219 

stockholders  in  corporations,  wlien  bound,  1G4 
taking  active  part  in  an  execution  sale,  1090,  1097 

conveyance  from  corporation  cannot  deny  its  existence,  1401 
,  issue  on  a  matter  of  estoppel,  waives  it,  1428,  1429 
taxpaj'er,  bound  as,  166 

telling  an  officer  that  he  has  another's  property  in  his  possession,  920 
that  judgments  may  b6  evidence  against,  282 
the  U.  S.  as  a,  210,  218 
to  a  judgment  must  be  adversary,  149 
an  action,  26 

bill  in  equity,  estopped  by  decree  as  to  matters,  477 
contract  after  receiving  benefits  cannot  repudiate  it,  1152 

bound  which  might  be  avoided  for  fraud,  1169,  1170 
deed  estopped  from  denying  anything  agreed  therein,  783 
illegal  contract  cannot  avoid  it  when  executed,  1150 
sealed  instrument  cannot  defeat  by  alleging  fraud,  721,  722 
suit  under  no  disability,  bound,  479 
treating  case  on  one  theory  cannot  obtain  reversal  on  another,  949 
unsuccessful  in  pleading  estoppel  may  confess  and  avoid  it,  1427 
voluntarily  paying  a  disputed  claim,  1181 

employing  the  agent  of  another,  bound,  1205 
when  estopped  from  amending  his  pleadings,  949 

denying  he  is  member  of  firm,  1227.  1228 
truth  of  his  admissions,  1090 
to  set  up  older  and  better  title,  1081 

statute  limitations  on  note,  1135 
he  cannot  question  jurisdiction  of  foreign  courts,  619,  620 
may  insist  on  estoppel  by  demurrer,  1428 
must  exercise  his  election,  1173 


are  to  2^ages.]  InDEX.  1603 

Party  (continued). 

•when  presumed  to  waive  benefit  of  estoppel,  1415 
who  by  misrepresentation  causes  an  arrest  or  levy  estopped,  917 
cannot  claim  title  by  adverse  possession,  1293,  1293 

obtain  title  to  exclusion  of  co-tenants,  etc.,  1297 
disaffirms  for  fraud  must  do  so  on  discovery,  1170 
does  not  rescind  on  ground  of  fraud,  waives  it,  1171 
has  an  opportunity  to  plead  fraud  but  does  not,  276 
is  bound  as,  when  represented  by  guardians,  etc.,  178 
estopped  to  deny  title,  809,  810 
makes  valid  dedication,  1280 
may  be  regarded  as  the  same,  88 
must  show  that  judgment  has  been  reversed,  1430 
waives  his  remedy  binds  his  privies,  207 
with  knowledge  recognizing  transaction  bound,  1194 

of  facts  which  avoid  transaction  may  ratify,  1170 
who  treats  contract  as  binding,  1195 
Patentee — 

assigning  his  patent  cannot  set  up  its  invalidity,  1164 
when  he  may  be  estopped  by  acquiescence,  1195 
Patent — 

recitals  in,  effect  of,  758 

the  U.  S.  conclusive,  775 
suit  for  infringement  in  federal  courts,  284 
title  obtained  b}',  when  it  inures  to  grantee,  785 
Patentees — 

estoppels  operate  for  and  against,  932,  933 
Patents — 

right  and  other  notes,  estoppel  of  maker  by  negligence,  1128,  1129 
Panlus's — 

definition  of  exceptions,  76 
Payee  — 

when  estopped  from  setting  up  usmy,  1123 
Payment— 

of  demand  estops  party  to  plead  illegality,  1183,  1183 
judgment  makes  it  res  judicata,  40 

money  estops  party  from  rescinding  contract,  1181,  1182 
on  forged  check,  doctrine  as  to,  1130 

judgment,  cannot  be  recovered  back,  536,  537 
rent,  not  so  strong  as  acceptance  of  tenancy,  970 

prevents  party  from  disputing  title  of  landlord,  970 
prima  facie  evideuce  of  landlord's  title,  974 
sufficient  proof  of  tenancy,  979 
imder  distress,  970 
recital  of,  doctrine  in  regard  to,  760,  767 
waiver  of,  does  not  afibct  liability  on  insurance  policy,  1343 


1604  Index.  IRe/erences 

Payments — 

voluntarily  made,  estop  party  from  recovering  the  money,  1182,  1183 
Peculiar — 

doctrine  in  Miss6uri  as  to  judgments  in  ejectment,  227 
Penalty— 

city  cannot  recover  where  it  has  granted  license,  1365 
Peudency — 

of  action  in  one  circuit,  when  bar  in  another,  284 

antjther  suit  between  same  parties,  when  no  defense,  566 
Pennsylvania— 

conclusiveness  of  judgments  of  ejectment  in,  220 
Perjury— 

when  it  will  not  affect  judgment,  457 
Permitting — 

another  to  sell  one's  property,  estops  owner,  2 
Person — 

accrediting  another  by  employing  him  bound  by  his  act,  1214 

cannot  accept  and  reject  the  same  instrument,  1156 

claiming  an  estoppel  must  have  been  mislead  or  deceived,  897 
under  one  who  is  bound,  is  estopped,  720 

coming  into  possession  cannot  set  up  outstanding  elder  grant,  1014 

must  have  notice  before  he  becomes  party  to  action,  156 

in  possession,  when  estopped,  720 

intervening  without  notification  becomes  a  party,  156 

not  a  party  who  takes  defense  in  suit,  bound,  157 

soliciting  grant  froai  legislative  body  is  estopped,  1014 

succeeding  to  title  of  married  woman  cannot  deny  her  power,  1250 
Personal  actions — 

actions,  jurisdiction  in,  69 
Personal  judsfments  — 140 

comprehend  all  who  are  represented  or  claim  under  them,  148 

conclusive  against  paities,  644 

personal  representatives,  144 
assignees  and  privies,  144 

as  reg  judicata,  iipply  to  parties  and  privies,  145 

conclusive  as  evidence,  as  a  plea  in  bar,  141 
upon  matters  directly  in  issue,  1-13 

conclusiveness  of,  results  from  unity  of  courts,  143 

distinction  between  and  those  in  rem,  14 

in  courts  of  exclusive  jurisdiction,  143 

no  evidence  of  incidental  matter,  142 

of  courts  having  jurisdiction,  144 

of  exclusive  jurisdiction,  effect  of,  143 

judgments  of  other  states  depend  on  jurisdiction,  618,  619 

parties  and  privies  concluded  by  personal  judgments,  148,  149 
subject  matter  must  be  the  same,  143 


are  to  pages.]  InDEX.  1605 

Personal  judgment  (continued). 

parties  or  persons  who  are  concluded,  146 

who  arc  included  within  this  term,  146 
principles  upou  which  their  conclusiveness  is  founded,  140,  141 
reason  for  conclusiveness  of  judgments  between,  147 
record  of,  conclusive  as  to  material  matters,  141 
strangers  not  affected  by,  140 
Personal — 

jurisdiction,  why  necessary,  24 
status,  decree  as  to  conclusive,  430 
Persons — 

acting  iiublicly  as  officers  presumed  to  be  rightful,  1305 

acting  under  corporate  name  estopped  to  deny  corporate  powers,  1321 

assuming  to  act  as  a  corporation,  estopped,  1308 

bound  by  estopjiels  in  pais,  1075,  1077 

concluded  by  judgments  in  admiralty  and  prize,  574 

enticed  into  a  state  to  serve  process  on,  concluded  by  judgment,  547,  548 

not  in  esse,  how  bound,  480 

under  disability  affected  by  estoppels  in  pais,  1075,  1077 

how  concluded  by  judgment,  178 
who  are  bound,  178 
Physician — 

judgment  in  favor  of  bars  action  for  malpractice,  261 
Plaintiff- 
judgment  against  bars  another  action  for  the  same  subject,  561 
tlea— 

judgment,  when  conclusive  as,  481 
of  acquittal  for  murder,  effect  of,  488 

autrefois,  convict  or  acquit,  how  made  available,  485,  499,  500,  507 
doctrine  applicable  to,  485,  507 
principles  upon  which  founded,  487 
of  estoppel  must  be  properly  framed  as  such,  1425 
2mis  darrein  continuance,  effect  of,  1425 
what  it  admits,  1415 
former  recovery,  how  it  may  be  defeated,  257 

which  is  bad,  1427 
judgment  recovered  in  foreign  court,  what  it  must  show,  1436 
nil  debet  not  a  good  plea  on  judgment  of  other  states,  666 
7iul  tiel  record  on  judgments  of  other  states,  666 

what  put  in  issue  by,  1435 
res  judicata,  to  what  applicable,  131,  549 

what  necessarj'  to  support,  104 
■when  not  good,  104,  108 
of  tender,  what  admitted  by,  964,  965 

ultra  vires  by  corporation,  when  available,  1317,  1318 
.  want  of  jurisdiction,  how  alleged,  1436 


1606  Index.  [References 

Plea  (continued). 

that  judgment  is  void  or  rendered  without  jurisdiction,  1431 
to  judgment  may  show  nature  of  service,  1435 

Pleading: — 

an  estoppel  by  deed,  1437,  1439 
by  estoppel,  14,  1433 
election  in,  conclusive,  943,  944 
estoppels  in  pais,  1447 

facts  necessary  to  create  estoppel  in  pais,  1447,  1448 
in  confession  and  avoidance,  conclusive,  943,  944 
judgment,  efifect  of,  33G 

judgment  not  necessary  to  set  out  the  whole  record,  1429 
obtained  during  pendency  of  another  action,  127 
on  judgments  of  other  states,  1435,  1436 

Pleas- 
admissible  in  actions  of  judgments  of  other  states,  666 
to  revive  judgments,  137,  138 
under  foreign  judgments,  588 
in  regard  to  judgments  which  are  held  good,  1419 
of  estoppel  must  precisely  allege  facts  creating  it,  1437 
to  judgments  of  other  states,  GG4 

Pledgor — 

of  stock,  when  estopped  from  claiming  title,  1324,  1325 

Pointing- 
out  boundary  line  to  one  about  to  purchase,  1269 

Points — 

collateral  or  incidental  not  included,  284 

not  considered,  not  merged  in  judgment,  122 

on  which  adjudication  depends,  how  ascertained,  112 

once  decided,  res  judicata,  98 

Policy— 

of  law  to  prevent  relitigation  of  same  matters,  330 

will  not  aWow  tenant  to  dispute  landlord's  title,  982,  983 

Possession — 

adverse,  who  cannot  claim  title  by,  1291,  1298 
obtaining  estops  lessee  from  setting  up  adverse  claim,  975 
party  from  relying  on  paramount  title,  978 

Possessory — 

action  of  ejectment  is,  in  England,  229 

Postponement^ 

of  prior  lien  by  failing  to  assert  it,  1044,  1045 
mortgage  by  estoppel,  1037,  1038 
mortgage  lien  by  extending  time  of  paym.ent,  1038 
unrecorded  liens  by  failing  to  give  notice,  1046,  1047 

Power- 
creating  corporation  can  only  set  up  ultra  vires,  1319 


are  to  pages.]  InDEX.  1607 

Power  (continued). 

of  courts  to  affect  judgments,  50 

partner  to  bind  firm  by  estoppel,  1229 
to  affect  or  modify  judgments,  50 

practical  location  of  boundary  line  for  more  than  twenty  years,  1270 
Precedents — 

when  they  become  important,  116 
Precise — 

point  in  issue  need  not  be  same  in  two  suits,  281 
Prejudice  — 

effect  of  dismissal  of  bills  without,  471,  474 
Preniiuiu — 

acceptance  of,  waives  forfeiture  of  policy,  1344 
agent  may  waive  payment  of,  in  insurance  policy,  1343 
by  extending  time  of  payment  waives  conditions,  1343 
receipt  of  after  death  of  party  waives  forfeiture,  1344 

by  agent  estops  company  from  denying  it,  1343 
voluntary  receipt  of  by  agent  estops  company,  1344 
Presumption — 

as  to  the  rendition  of  judgments,  27 
in  favor  of  a  boundary  line  acquiesced  in,  1268 
ratification  by  principal,  1216 
record,  59,  60 
that  judgment  covers  several  causes  of  action,  257 

party  had  notice  to  a])pear  and  contest,  136,  137 
Presumptions — 

as  to  acts  of  courts  of  competent  jurisdiction,  102 

appearance  by  attorney  in  foreign  judgments,  630,  635 
principal  being  bound  by  acts  of  an  agent,  1211 
conclusive  effect  of  judgment  may  be  rebutted,  257 
in  favor  of  judgments  of  other  states,  614 

proceedings  of  superior  courts,  446,  447 
records  of  courts  of  competent  jurisdiction,  317 
validity  of  corporate  acts,  1317 
regard  to  binding  operations  of  judgment,  102 
juris  et  dejure,  75 

cannot  be  destroyed,  75 
of  law  need  not  be  stated  in  pleading  estoppel,  1430 
that  all  judgments  apply  existing  law  to  facts,  116 
matters  were  litigated,  481 
causes  of  action  are  the  same,  549 
every  man  acts  and  speaks  the  truth,  5 
judgment  is  final,  when  not  controvertible,  128 
pleader  submitted  strongest  point,  567 
Preventing — 

party  from  setting  up  defense,  938 


1G08  Index.  ^References 

Prima  facie— 

Avhen  rccitul  of  service  in  record  is,  306 
Primary — 

grovind  of  estoppels  in  pals  affecting  land,  1073,  1090 
Principal — 

accepting  advances  from  a  factor,  bound,  1205 
and  servant,  wlicn  are,  IGl 
agent,  are,  IGl 

collateral  elements  to  plea  of  res  judicata^  65 
bound  by  act  of  agent,  whether  detrimental  or  advantageous,  1214 

deeds  of  agent  or  attorney,  1208 
by  retaining  fruits  of  aftinns  acts  of  agent,  1202 
cannot  ratify  a  part  and  reject  part,  1203,  1219,  1220 

receive  benefit  and  reject  contract  at  same  time,  1205 
set  aside  settlement  after  availing  himself  of  it,  1204,  1205 
elements  in  plea  of  res  judicata  is  valid  judgment,  65 
estopped  from  claiming  to  be  surety,  1223 
judgment  against,  effect  of  on  surety,  168,  177 

recovery  of,  bars  action  for  interest,  91 
jurisdiction  of,  when  necessary,  70 
may  be  bound  though  authority  of  agent  withdrawn,  1210 

ratify  an  unauthorized  act  so  as  to  bind  him,  1202 
must  adopt  or  reject  the  whole  contract,  1202 
when  bound  by  agent's  dedication  of  streets,  1289 
false  representations  of  agent,  1206 
estopped  by  agent's  act,  1201 
elements  to  the  conclusive  effect  of  records,  25 
Principle— 

that  applies  to  bills  and  notes,  1123,  1124 
wl)ere  one  of  two  parties  must  suffer  applies  to  land,  1085 
Principles — 

applicable  to  bonds  delivered  by  principals  without  signature  of  sureties, 
11:30,  1147 
conclusive  effect  of  records,  24 
in  criminal  cases,  485,  487 
to  county  courts  and  county  officers,  522 
foreign  proceedings  in  personam,  586,  597 
judgments  of  courts  of  general  jurisdiction,  307 

federal  courts,  697,  698 
proceedings  in  in  rem,  581,  592 
statutory  and  official  bonds,  767,  772 
as  to  application  of  estoppels  in  pais  to  married  women,  1233,  1235 
judgments  of  insurrectionary  states,  698,  702 

negntial)lu  securities  issued  by  municipal  corporations,  1370,  1383 
embraced  in  the  doctrine  of  res  judicata,  133,  134 
governing  the  rights  of  strangers,  114 


are  to 2)ages.]  InDEX.  1609 

Principles  {continued). 

in  order  to  make  estopjiels  effectual,  14 
regard  to  adverse  j^ossession,  1291,  1298 

dividing  or  splitting  actions,  246,  256 
judgments  of  other  states,  702,  703 
of  conclusiveness  as  to  foreign  judgments  in  rem,  573,  587 
of  judgments  of  various  courts,  20 
applicable  to  officers'  returns,  589,  546 
election  are  rules  of  natural  justice,  1186 
estoj)pel  applied  to  bills,  etc.,  made  on  Sunday,  1155 
between  landlord  and  tenant,  970,  971 
by  deed,  foundation  of,  711 

or  matter  in  writing,  707,  858 
in  pais  applicable  to  administrators,  etc.,  1261,  1263 

apply  to  corporations,  1299,  1350 
when  applicable,  1084 

penal  in  their  character,  1084 
estoppels  in  pais,  876,  878,  887,   899,  900,  915,  917,  919,  920,  1003, 
1010,  1057,  1060,  1069,  1074,   1087.  1089,  1090,  1099, 
1110,  1111,  1113,  1114,  1119,  1120,  1122 
aflfecting  title,  stated  in  Wendell  v.  Van  Rensselaer,  1056 
in  pais  as  afi'ecting  title  to  land,  1053,  1111 

applied  against  insurance  companies,  1330 
apply  to  real  and  personal  property,  1074 
apply  without  regard  to  nature  of  property,  1053,  1054 
how  an  after-acquired  title  inures,  792 
Private — 

right  in  matters  of,  judgment  binds  parties,  privies,  157 
Privies — 

affected  by  estoppel  between  landlord  and  tenant,  974,  975 
and  parties  bound  by  estoppel  in  deed,  720 
assignee,  when,  154 
classified  by  Coke,  150 
covenantor,  when,  162 
divided  mlo  three  classes,  150 
estopped  if  their  ancestors  would  be,  if  living,  728 
heirs  are  when  they  derive  title  from  ancestor,  160 
in  estate,  in  blood  or  in  law,  concluded,  155 
blood,  wlio  is,  150,  151 
estate,  who  are,  154 
parties  may  become  by  notice  t(^  defend,  157,  158,  162 
those  whose  interests  are  identical  with  parties,  155 
when  husband  may  be  of  his  wife,  151,  160 
who  are,  afliected  by  estoppels  by  deed,  720 

bound  by  judgments  in  ejectment,  226 


1010  Index.  [References 

Privilege — 

must  be  plead  or  waived,  452 
Privity — 

of  estate  ordinarily  created  by  payment  of  rent,  974 

party  claiming  under  anotlier,  when  not,  160 

term,  how  used,  149 

when  sufficient  to  give  rise  to  an  estoppel,  756 
Privy — 

in  estate  to  a  judgment,  who  cannot  be,  155 
law  under  statutory  pi'ovision,  156 

successors  in  office,  when,  152 

surety  may  be,  159 

when  a  man  becomes  a,  150 
Prize- 
foreign  judgments  of  courts  of,  effijct  of,  573,  587 
Probate  Court — 

decision,  when  not  re-examinable  in  any  other,  423 
Probate  and  Partition^ 

conclusiveness  of  judgment  in,  480 
Proceeds- 
receipt  of  by  heir  an  estoppel,  1080 

mortgagor  estops  denying  regularity  of  foreclosure,  1050 
Proceedings — 

however  erroneous  where  jurisdiction  exists  do  not  aflfect  judgment,  316 

in  federal  bankrupt  courts  conclusive,  284,  288 
foreign  attachment,  effect  of,  585 

in  rem,  G9 

of  county  commissioners  when  judicial,  conclusive,  517,  518,  525 
ecclesiastical  bodies,  conclusiveness  of,  532,  534 

terminating  in  judgment,  conclusive,  26 

under  the  civil  law  as  to  res  judicata,  77,  96 

without  jurisdiction  69,  70 
Process — 

jurisdiction  of  necessary,  70 

of  law,  what  is  due,  70,  71 
Promise  — 

by  principal,  when  it  ratifies  agent's  acts,  1217 
Promising — 

to  reconvey  estops  party  from  setting  up  title,  930 
Promisor — 

judgment  finding  person  to  be,  conclusive.  "33 
Proof- 
burden  of,  on  party  opposing  conclusiveness  of  record,  236,  237 
pleading  an  estoppel,  1434 
those  T;ho  rely  on  the  estoppel,  481 

oxdudod  by  ?'f")  judicata,  75 


are^o  pages.']  IndEX.  1611 

Proof  (continued). 

why  necessary  to  identify  matters  in  issue,  330 

of  loss,  application  of  estoppel  to,  1348,  1353 
waiver  of  by  insurance  company,  1348 
Property— 

cannot  be  taken  without  due  process  of  law,  70 
Procuring— 

ordinance  estops  party  from  questioning  it,  1362,  1363 
Property  holder — 

when  estopped  to  deny  power  of  state  to  contract,  1361 
Propositions  - 

assumed  or  decided,  conclusive,  122 

recognized  as  to  estoppel  i?i  pais  5,  6 
Proprietor- 
pointing  out  boundary  line,  estoppel  of,  1267 
Prospectuses — 

when  estoppels  in  pais,  923,  925 
Public- 
policy  requires  the  adoption  of  estoppels,  7 

square,  dedication  of  land  for,  1282,  1283 
Purchase— 

of  land  by  representing  it  as  free,  estops  party  denying  it,  1 199 
Purchaser — 

at  execution  sale,  estopped  to  deny  debtor's  title,  975 
judicial  sales  affected  by  estoppels  by  deed,  719,  721 

for  value  of  mortgage,  estoppel  in  favor  of,  1030 

from  tenant  or  at  sherifTs  sale  bound  same  as  tenant,  993 

•not  affected  by  secret  equities,  1007 

of  land  estopped  from  denying  title  of  vendor,  975 
under  an  en-oneous  opinion  as  to  title,  1082 

doctrine  in  regard  to,  211,  213 
pendente  lite  how  bound,  21U,  213 

subject  to  mortgage,  cannot  deny  validity  of,  1048 

when  estopped  from  denying  validity  of  mortgage,  1034 
to  deny  mortgagor's  right  to  redeem,  1048 
he  occupies  position  of  tenant,  estoppel  of,  1013 

with  knowledge  of  an  estoppel,  when  bound,  1079 
Purchasing— 

subject  to  mortgage  creates  estoppel,  1034,  1035 
Principles— 

of  U.  S.  S.  court  as  to  collateral  impeachments  of  judgments,  423 
the  civil  law  in  regard  to  res  judicata,  90,  94 

on  which  jurisdiction  is  obtained,  05 

upon  which  conclusiveness  of  judgments  depends,  121,  122 
doctrine  of  implied  agency  founded,  1209,  1210 

of  res  judicata,  123 


1612  Index.  [lie/ercnces 

Principles  (continued). 

to  piirlics  \vituessing  execution  uf  instruments,  1043,  1046 
upon  which  conelusivencss  of  judgments  is  founded,  101 

doctrine  of  res  judicata  is  founded,  123,    124,  133 
■which  relieve  judge  from  liability,  508,  509 
Prior- 
judgment  on  the  same  cause  of  action  a  bar,  126 
when  no  bar,  236 

prima  facie  conclusive,  236 
Priority — 

of  action  immaterial,  the  judgment  controls,  126 

Q. 
Qiiare  Claiisnm  Fregit— 

judgment  in,  when  conclusive  of  title,  230 
res  judicata  as  between  parties,  230 
Question — 

litigated,  when  concluded  by  former  judgment,  288 
of  forfeiture  by  charter,  estoppel  in  regard  to,  1392,  1393 
of  jurisdiction,  decisions  on,  final,  418 
how  determined,  C7,  72 
when  one  of  fact,  conclusive,  419 
j)robate  once  passed  upon,  final,  98,  99 
pending  in  one  court  cannot  be  re-agitated  in  another,  552 
whether  same  matters  could  have  been  litigated,  how  determined,  329 
as  to  what  was  in  issue,  how  determined,  553,  559 
whether  state  statute  violates  U.  S.  constitution,  decision  of,  688 
Questions — 

as  to  identity  of  matters  litigated,  how  determined,  236,  237 
cannot  be  raised  in  appellate  court  for  first  time,  953,  954 
determined  by  probate  court  not  re-examinable,  423,  424 
of  former  acquittal,  how  made  available,  498,  499 

or  conviction,  how  determined,  497,  408 
recitals  as  estoppels,  in  actions  of  ejectment,  743 
statutory  construction,  upon  what  courts  conclusive,  684,  689 
decision  of  on  constitutionality  U.  S.  laws  binding,  688 
once  settled  and  determined  cannot  be  again  revived,  99 
that  are  merged  in  judgment,  498,  499 

arise  collaterally,  not  included  in  judgment,  477 
might  have  been  determined  are  i)arred,  277,  278 
to  be  determined  to  make  judgment  a  bar,  300 
Qnit-claim— 

vfithaut  covenants,  efiFect  of,  826,  827 


are  to  pages.]  InDEX.  1613 


R. 
Eailroad  Company — 

bound  by  contracts  of  agents,  1384,  1385 

misrepresentations  as  to  earnings,  1389 
condemnation  of  land,  1388 
by  ratifying  act  of  oflBcers,  1389 
cannot  plead  want  of  authority  of  agents,  1385 
judgment  against  bars  action  for  crossing,  310 
when  bound  by  ajiplying  for  appraisers,  1388 
not  allowed  to  plead  ultra  vires,  1385 

permitted  to  deny  bill  of  lading,  1385,  1386   ' 
K.  R.  Contract — 

judgment  on  part  conclusive  as  to  whole,  233 
Railway — 

aid  bonds,  estoppel  of  municijmlities  by,  issuing,  13T1,  1384 
when  construction  of  cannot  be  interfered  with,  1389 
Ratification — 

after  act  done,  binds  principal,  1211 
by  accepting  proceeds  of  sale,  1199 

bank  of  oflBcer's  acts  binding,  1330 

corporation  in  permitting  judgment  by  default,  1310,  1311 

insurance  company  conclusive,  1203 

municipal  cori^orations  of  agent's  acts,  1218 

municipality,  equivalent  to  prior  authority,  1219 

state  of  acts  of  agents,  when  binding,  120-4,  1265 

widow  after  husband's  death,  1238 
corporation  bound  by,  same  as  persons,  1301,  1810 
doctrine  in  regard  to,  1157,  1200 
essentials  of,  12 10 
implies  knowledge,  1157 
is  founded  on  knowledge  of  facts,  1157 
must  be  with  full  knowledge,  1215 
nature  of,  1157 
of  agent's  acts  in  contracting  for  loan,  1204 

alteration  in  negotiable  instruments,  1136 

contract  by  municipal  corjioration,  effect  of,  1367 

forged  signature  by  party,  1123 
effect  of,  1131 

impeachable  transactions,  1196 

infant's  acts,  when  conclusive,  1257 

judicial  sales,  1189 

part  ratifies  whole,  1203,  1204,  1219,  1220 

unauthorized  act  by  corporation,  1310 

unauthorized  act  by  principal,  conclusive,  1203,  1204 


1614  Index.  [Seferences 

Ratification  (continued). 

once  made,  irrevocable,  1196 
subsequent,  doctrine  in  regard  to,  1212,  1213 
when  it  will  be  presumed  from  silence,  1216 
Real  actions — 

when  judgment  in  a  bar,  93 
Real  Estate- 
may  be  affected  by  matter  in  pais,  2 
jjroceediiigs  for  the  recovery  of  in  rem,  352 
Real- 
property,  judgments  affecting  conclusive  in  other  states,  863,  864 
Reasonable — 

certainty  required  in  pleading  former  judgment,  1429,  1430 
Reason — 

of  conclusiveness  of  judgments  between  parties,  143,  144 

rule  of  conclusiveness  of  judgments,  101 
personal  jjjdgments  bind  only  parties,  140,  142 
strangers  are  not  bound  by  judgment,  114 
why  estoppels  are  strictly  construed,  10 

judgments  of  competent  courts  are  conclusive,  308 
there  must  be  an  end  to  litigation,  123,  124 
they  must  be  certain  to  every  intent,  10 
Reasons — 

assigned  by  court  immaterial,  312 

default  judgments  are  within  rule  of  res  judicata,  43 

for  conclusiveness  of  decisions  in  rem,  396 

estoppels  between  landlord  and  tenant,  974,  975 
sustaining  the  doctrine  of  Gates  t.  Preston,  264,  275- 
the  doctrine  of  stare  decisis,  116,  123 
universal  application  of  estoppel,  873,  874 
judgments  in  rem  axe  conclusive,  351,  357 

not  admissible  in  civil  and  criminal  cases,  483,  484 
of  appellate  courts  not  re-examinable,  121 
competent  tribunals  may  be  void,  73 
why  judgments  not  subject  to  collateral  attack,  424,  425 
Receipt- 

of  money  by  agent,  when  it  binds  principal,  1103 
for  damages,  when  conclusive,  1360 
when  an  express  consent,  13G0 
premium  by  agent  binds  insurance  companj'^,  1342,  1343 
proceeds  by  heir,  1080 

of  sale  made  by  agent  binds  principal,  1220 
property  from  corporation  binds  party,  1399 
purchase  money,  conclusive,  928,  929 
Receiptor — 

estopped  from  proving  title  in  himself,  916 


are  to 2)ages.]  InDEX.  1615 

Receiptor  (continued). 

estopped  from  setting  up  title,  773 
of  property  cannot  deny  sheriff's  title,  93G,  987 
Receiving — 

evidence  as  waiver  of  an  estoppel,  1428 
proceeds  of  sale  under  execution,  1189 
proofs  of  loss  without  objection,  when  a  waiver,  1349 
Reciprocality — 

of  estojjpels,  483 
Recitals— 12 
Recital— 

application  of  equitable  estoppels  to,  762,  763 
as  estoppels  by  deed,  741,  776 

to  payment  of  consideration,  744 
binds  parties  claiming  under  deed,  759 

privies  in  blood,  law  and  estate,  741,  742 
by  admission  of  facts  in  deed  conclusive,  754 
carrier  in  bill  of  lading,  when  conclusive,  776 
matter  of  writing,  not  of  record,  767 
by  one  of  several  loaners,  754 
attorney  for  principal,  756 
estoppel  defined,  742 
concludes  mortgagees  claiming  under  mortgagor,  749 
conclusive  effect  of,  741 

distinction  between  general  and  jDarticular,  748,  749,  774 
does  not  bind  infants,  758 

strangers,  741,  742 
estops  parties  and  jirivies,  758 

claiming  under  same  grantor,   752 
estoppel  by,  applicable  to  mortgages,  794 

applies  to  land  purchased  from  government,  786 

caused  by  covenant  of  warranty,  788 

created  b}''  use  of  what  terms,  782,  783 

effect  of,  depends  upon  language  used,  782 

general  principles  relating  to,  794,  795 

in  implied  conveyance  of  fee  simple  title,  792 

deed  of  simple  release,  784 
inures  in  favor  of  parties  and  privies,  794 
must  be  mutual,  742,  743 
passes  estate  in  conformity  with,  787 
prevents  party  contesting  grantor's  title,  791,  792 

from  contradicting  them,  783 
■what  forms  operate  as,  783 

founded  on,  785 
when  applicable  to  equitable  titles,  7&2 
as  effectual  as  warranties,  752 


1616  Index.  [Re/erencea 

Kecital  (continued). 

estoppel  by,  wheu  new  title  inures  to  grantee,  792 

subsequent  grantee  entitled  to  benefit,  794 
where  owner  convoys  witliout  title,  785 
whether  applicable  to  quitclaim  deeds,  789,  790 
will  be  created  to  prevent  fraud,  7G4 
where  vendor  no  title  when  he  conveys,  786,  787 
estopping  party  to  impeach  assignment,  75G 
of  consideration  when  cannot  be  contradicted,  7G1 
delivery  of  deed,  751 
execution  of  a  deed  of  release,  756 
facts  in  deed  conclusive  against  grantor,  743 
material  facts,  751 

paj'ment  of  purchase  money  may  be  contradicted,  761 
service  in  record,  when  conclusive,  418 

when  conclusive,  316 
title  estops  party  from  deuj-ing  it,  751 
in  a  deed,  751 

deed  of  vendor,  1191 
lease,  lessee  cannot  contradict  it,  845 
or  covenant,  when  acted  on  conclusive,  756 
that  grantor  conveyed  fee  simple  title,  755 
has  good  title,  conclusive,  754 
one  occupies  land  as  tenant  prevents  denying  it,  1006 
exceptions  to  conclusiveness  of,   760 
general  cannot  control  part  of  deed,  774 

doctrine  as  to,  744,  748 
in  administration  bond  prevent  denial  that  principal  is  bound,  771 
assignment,  assfgnee  when  not  estopped,  764 
assignments  estop  assignor,  764 
attachment  bond,  conclusiveness  of,  770,  771 
bond,  precludes  surety  denying  appointment  of  principal,  1384 
official  bond  prevents  surety  from  disputing  character,  769 
bonds,  767,  772 

certificates  of  justices  of  the  peace,  762 
deed  cannot  be  contradicted  by  party,  755 
effect  on  manied  women,  742 
for  fraudulent  puri)oses,  759 
may  be  shown  to  be  void,  759 
of  assignment,  effect  of,  756,  774,  775  ' 
existence  of  mortgage,  749,  750 
prior  lien  or  incumbrance,  750 
stranger  cannot  take  advantage  of,  754 
that  party  is  owner,  758 
bind  all  parties  thereto,  741 
doctrine  as  to,  756,  758 


arc  to  i)ages.]  InDEX.  lGi7 

Recital  (continued). 

in  deed  extends  to  all  facts  therein,  760 
of  correction,  effect  of,  703 
evidence  against  parties  making  them,  754 
on  execution  sale,  7G1 
restriction  of,  conclusive  effect  of,  7-io 
deliver}"  bond,  effect  of,  761 
forthcoming  bonds,  obligors  bound  by,  768 
guardian's  bond  prevents  denial  of  its  validity,  770 
joint  bond,  party  cannot  deny  he  is  principal,  770 
lease,  effect  of  on  parties,  704 
municipal  bond  conclusive,  1383 

oflBcial  bond  prevents  denial  of  character  of  principal,  770 
patent  of  prior  patent,  758 

receipt  given  estops  party  from  setting  up  title,  773 
record  conclusive  on  administrator,  390 
service  in  2:)artition  decree,  300 
sheriff's  return,  762 

statement  of  facts  mutually  agreed,  conclusive,  763 
statutory  bonds  conclusive  on  sureties,  767 
stock  certificates  conclusive,  1325,  1326 
undertaking  binds  sureties,  769 
void  deed,  effect  of,  759 
warranty  deeds,  effect  of,  749 
■will,  how  made  conclusive,  756 
need  not  be  made  in  terms  to  be  conclusive,  773,  774 
not  conclusive  to  matters  of  mere  description,  743 
of  boundary  lines  in  deed  conclusive,  752,  753,  759 
consideration,  reasons  why  not  conclusive,  764,  766 
date  in  deed  not  conclusive,  758 
facts  in  bond  conclusive  on  party  executing,  772 

■which  render  a  deed  valid,  conclusiveness  of,  749 
general  words  do  not  estop,  742 
particular  facts,  upon  whom  conclusive,  752 
payment  of  purchase  mone},  700 
specific  facts  u^wn  which  others  rely,  751 
principals  in  regard  to,  744,  748 

questions  in  regard  to  arise  in  actions  of  ejectment,  743 
specific,  bind  parties  if  not  land,  743 
when  co-tenant  concluded  by,  755 

intended  to  be  statement  of  one  party  only,  7'>3 
they  bind  grantee,  750 
where  party  acts  officially,  no  estoppel,  751 . 
Eecoguition — 

of  chattel  mortgage  prevents  denying  its  validity,  1229 
102 


1G18  Index.  [References 

Eccognilion  (continued). 

of  corporation  in  statute  binds  state,  1406 
party  as  agent  binding,  1205 
Kecog'iiizcd  — 

propositions  in  regard  to  estoppels  in  pais,  5,  6,  882,  883 
Recognizing — 

a  liabilit}^  prevents  contesting  it,  1182,  1183 
and  adopting  survey  binds  parties  to  boundary,  1276 
sale  prevents  attack  for  fraud,  1194 
the  ofKcial  capacity  of  one,  906 
validity  of  mortgage  precludes  mortgagor,  1031 
Record— 

absolute  verity  where  court  has  jurisdiction,  408 

ambiguity  in,  when  it  will  not  affect,  237 

cannot  be  extended  by  argument,  290 

conclusive,  whether  pleaded  technically  or  given  iu  evidence,  1413 

defined,  17,  18 

eftect  of  when  anything  is  left  to  conjecture,  292 

facts  of  must  be  proved  by  record,  242 

matters  of  need  not  be  proved  by  evidence,  100 

none  in  personal  actions  unless  party  served,  415 

of  acquittal  in  regard  to  malicious  prosecution,  483 

action  of  trespass  quarc  clausum  frecflt  on  questions  of  title,  225 
judgment  must  show  points  dciennined,  289 

that  former  action  was  same,  1421 
recovery  estops  defendant  from  what,  1428 

for  damages  as  conclusive  as  a  disclaimer,  819 
superior  jurisdiction  imports  absolute  verity,  316 
on  appeal,  when  not  a  bar,  1417 
part  of  insufficient  to  sustain  plea  of  former  recovery,  1417 

or  one  which  does  not  show  service  inadmissible,  1417 
pleadings  and  verdict,  effect  of,  290 

presenting  several  points,  judgment  conclusive  to  all,  122 
presumptions  in  favor  of,  59,  60 
regular  on  its  face,  conclusive,  306,  307 
removal  of,  doco  not  vitiate  b^u"  of  judgments,  567 
requirements  of,  between  parties  and  privies,  295 
what  necessary  to  make  it  conclusive,  306,  307 

show  to  make  available,  1417 
when  admissible  in  favor  of  strangers,  335 
conclusive  evidence,  2;>7 
it  must  be  aided  by  extrinsic  evidence,  330 

will  be  sufficient  evidence,  328,  329 
not  available  as  a  bar,  2S9,  290 
prirrM  facie  evidence,  236 


ate  to  pages.]  IndeX.  1619 

Record  (continued). 

when  the  best  evidence,  112 

whether  pleaded  in  bar  or  given  in  evidence,  conclusive,  1413 
Records — 

import  absolute  verity,  21 

in  the  U.  S.  21 

judgments  and  verdicts  are  always  of,  24 

of  county  boards,  supervisors,  etc.,  conclusive,  517,  524 
justices  of  the  peace,  when  conclusive,  403,  404 

what  they  are,  21 
Recovery — 

by  defendant,  where  fraud  is  pleaded,  326 
plaintiff,  where  defendant  pleads  fraud,  327 

in  assumpsit  may  bar  an  action  of  trover,  96 

of  damages,  effect  of,  326 

for  breach  of  contract,  327,  328 
when  and  when  not  a  bar,  288,  289 
matter  alleged,  creates  an  estoppel  by  record,  326 

on  contract  of  grantee,  327 

the  matter  alleged,  creates  an  estoppel,  43 
Redemption — 

waiver  of,  cannot  be  subsequently  asserted,  1168,  1169 
Refusal — 

to  pay  loss,  when  a  waiver,  1349,  1352 
Refusinsj — 

to  pay  loss  on  one  ground  bars  another,  1351,  1352 
Regularity — 

of  proceedings,  presumptions  in  favor  of,  413 
Release — 

deed  of,  when  it  works  an  estoppel,  784,  785 

of  dower  extinguishes  right  to,  857 

mortgage  cannot  be  questioned  by  party  making  it,  1051 
Releases — 

which  operate  as  estoppels,  823 
Relief— 

against  judgments  when,  and  not  granted  in  equity,  465,  467 
where  obtained,  459,  460 

by  estoppel  in  pais,  formerly  granted  in  equit}^  871 
Relying— 

on  judgment,  puts  proof  on  party  pleading  it,  307 
Remaiiiiug — 

passive  when  one  is  about  to  purchase  property,  1075,  1076 
Remedies — 

election  of  one,  bars  relief  in  another,  1178,  1179 
Rendition — 

of  judgment  without  jurisdiction  a  nullity,  415 


1 020  Index.  [Jlejercnces 

RcnoTTal — 

of  policy,  when  waiver  as  to  misrepresentations,  1354 

Rent- 
acceptance  of  as  an  estoppel,  968 

Ecpeated — 

instances  of  employment  may  bind  party,  1215 
Replevin — 

issues  tried  in  cannot  be  again  litigated,  293 
judgment  detcnuiniug  right  of  i)osses.sion  no  bar,  294 
in,  if  satisfied,   a  bar,  294 
when  a  merger,  293 

may  lie  aided  by  parol  evidence,  294 
no  bar,  B73 
not  conclusive,  293 
right  of  property  tried  in  conclusive,  293,  294 
writ  justifies  officers,  374 
Replication — 

judgment  for  defendant  on,  197 
Reply- 
to  plea  of  former  recovery,  1427 
Representation — 

bj-  corporation  as  to  ownership  of  stock,  1325,  1326 

widow,  when  it  bars  dower,  853,  854 
doctrine  as  to  infants,  1252,  1253 

either  in  express  terms  or  by  conduct,  estoppel  in  pais,  5 
instrument  valid  prevents  party  denying  it,  1116,  1118 
necessar}'  for  infants  and  minors,  178,  179 
of  married  woman  that  property  is  her  ov.-n,  1237,  1238 
she  is  single,  1237 
party  that  he  is  owner  of  stock,  1407 
rule  in  regard  to  estoppel  b}-,  882 
Representations — 

acted  upon  proves  to  be  untrue,  895 
as  an  estoppel,  895 

to  indorsement  for  value,  1124 

the  future,  when  they  operate,  903 
creating  estoppels  as  to  land,  1085,  1086 
doctrine  of  estoppels  by,  same  at  law  as  equity,  903 
if  such  as  may  be  relied  upon,  conclusive,  899 
in  deeds  that  are  conclusive,  748  ' 

intended  to  deceive  one  man  which  deceived  another,  898 
made  by  one  acted  upon  by  another  conclusive,  903 
of  duly  authorized  agents  bind  principal,  1211 
married  woman,  when  they  bind  her,  1246 
mortgagee,  when  they  may  be  relied  upon,  1037 
one  partner,  when  they  bind  the  firm,  896 


ore  (o  p<i(;cs.]  InDEX.  1C21 

Ilcprosontations  (con tinned). 

tliat  create  and  amount  to  equitable  estoppels,  880 

woman  is  man's  wife,  when  binding,  917,  918 

Represent  ins: — 

estate  free  from  liens,  party  cannot  set  up  any,  904 
property  to  be  another's,  when  an  estoppel,  3 
to  another  that  he  will  purchase  for  his  benefit,  931 
Eequireinents — 

beneficial,  waiver  of,  by  insurance  companj'-,  1350 
essential  to  conclusiveness  of  judgments  in  partition,  303,  304 
necessary  to  constitute  valid  dedication,  1279,  1280,  1285,  1286 
to  create  and  obtain  benefits  of  estoppel,  1447 
make  an  admission  an  estoppel,  1073,  1087 

judgments  in  ejectment  conclusive,  220 
Requisites — 

essential  to  the  exceptlo  res  judicata,  85 

necessary  to  create  estoppel  against  owner  of  land,  1057 

valid  foreign  judgments,  588 
of  a  lease  by  estopjiel,  836 

estoppels  in  regard  to  boundary  lines,  1275 
the  plea  of  res  judicata  in  the  civil  law,  90 
to  attorney's  acts  to  bind  client,  941,  942 
create  an  estoppel,  1084,  1085 
make  judgments  conclusive  on  parties,  149 

res  judicata,  98 
the  creation  of  equitable  estoppels,  910,  911 
plea  of  judgment  recovered  stated  by  Vinnius,  1420 
Res  judicata — 
safe  rule,  116 

applied  to  criminal  actions,  506 
applies  only  to  parties  and  privies,  117 

when  the  same  (question  is  raised,  79 
to  all  judgments,  117 

judicial  determinations,  42 
every  objection  open  in  first  suit,  548,  549 

point  which  might  have  been  litigated,  548 
same  matter  in  issue  in  prior  judgment,  183 
as  a  bar  applies  only  to  parties  and  privies,  145,  146 
binding  effect  of,  79 

classification  of  cases  to  which  doctrine  belongs,  319 
conditions  under  which  it  becomes  applicable,  102 
destroys  cause  of  action,  133 
doctrine  as  to  motions,  568,  570 

of  stated  by  the  civilians,  90 
stated  in  Sheldon  v.  Edwards,  239,  240 
elements  necessary  to  plea  of,  65 


1622  Index.  [Ee/ere»ces 

'Res  jniicaia  (continued). 

excludes  all  proof  to  the  contrary,  125 
extends  to  parties  and  their  successors,  183 
how  made  available  under  the  Roman  law,  83 
the  doctrine  was  made  available,  89,  90 
to  ascertain  when  judgment  is,  236,  237 
includes  judgments  by  default,  43 
is  a  judgment  on  the  merits,  236 
judgments  are  in  mandamus  proceedings,  138,  139 
as,  27 

of  appellate  courts  are,  118,  119 
requisites  of,  to  create,  38,  39 
oral  evidence  admissible  to  establish  defense  of,  113 
plea  of,  to  what  applicable,  131 
pleading  it  under  code  systems,  318 
reason  limit  must  be  placed  on  litigation,  102 
requires  parties  to  bring  forward  their  whole  case,  131 

vigilance  and  attention,  130 
rule  of  founded  on  sound  principles,  130 

not  a  hard  one,  130 
what  included  under  the  tenn  of,  130,  131 

necessary  to  maintain  plea  of,  104 
when  it  operates  as  a  bar  to  suit,  104 
judgment  is,  301 
matter  becomes,  75 
the  plea  of  will  not  be  good,  105 
Res— 

possession  of,  necessary  to  a  valid  judgment  in  rem,  357 
Restitution — 

judgment  of,  when  conclusive  in  ejectment,  224 
Retr.axit— 
defined,  48 

judgment  by,  efifect  of,  48 
Retroactive — 

effect  of  ratification  by  widow,  1238 
Return — 

of  constable,  effect  of,  965 

officers  cannot  be  contradicted  by  officer,  543,  544 
impeached  collaterally,  546 
conclusive  against  strangers,  540 

as  to  competency  of  appraisers,  545 
effect  of,  539,  546 
in  federal  courts,  542 
of  time  of  receipt  of  process,  545 
on  courts,  546 
parties,  540 


are  to  pages.]  InDEX.  1623 

Return  (continued). 

of  officers  conclusive  on  sale  of  land,  546 

to  show  title  to  property,  545 
doctrine  in  New  York  as  to,  540 

various  states  as  to,.  540,  542 
exceptions  to  rule  of  conclusiveness  of,  542 
may  be  collaterally  attacked  in  some  states,  540 
policy  of  the  law  in  regard  to,  543 
principles  applicable  to,  539,  546 
to  an  execution,  estoppel  by,  965 
sheriff's,  conclusive,  197 
Reversal— 

of  judgment  avoids  estoppels,  333 
effect  of,  106 
in  ejectment,  226 
Revivor — 

of  judgments,  conclusiveness  of  judgments  in,  137 
Rigiit— 

of  property,  effect  of  trial  of  in  replevin,  294 
under  a  devise,  how  may  be  extinguished,  1186 
Rights — 

how  lost  by  estoppel,  1071 
of  parties  once  decided  are  final,  117 
party  claiming  as  stockholder,  concluded  by,  1399 
of  stockholders,  how  concluded,  164,  165 
Rule— 

ajjplication  of  to  matters  which  might  have  been  litigated,  318 
as  to  after-acquired  title,  when  it  does  not  apply,  818 
courts  with  and  without  jurisdiction,  420,  421 
judgment  against  two  where  recovery  against  one,  682,  688 
matters  which  might  have  been  decided,  295 
proceedings  in  courts  of  various  jurisdictions,  41-7 
res  judicata  under  the  codes,  318. 
what  deeds  estoppels  are  inapplicable  to,  848 
established  of  United  States  supreme  court  as  to  records,  290,  291 
extent  of  as  to  parties  claiming  under  same  right,  978 
in  England  as  to  effect  of  foreign  judgments,  673 

in  regard  to  foreign  sentences  in  admiralty,  575 
Picard  v.  Sears,  876 
regard  to  collateral  impeachments  of  judgments,  425 

estoppels  created  by  false  representations,  903 

■in  2ifiis,  1073 
equitable  estoppels,  882,  885 
making  judgments  available,  1411,  1412 
pleading  estoppels  in  2'aiSy  1448 
revivor  of  judgments,  137 


1()24  Index.  [llejerences 

Rnle  (continued). 

in  regard  to  subsequently  acquired  title,  818 
the  Duchess  of  Kingston's  case,  105 

United  States  in  regard  to  foreign  judgments  in  admiralty,  575 
of  certainty  in  judgment  not  extended  b}*  implication,  262 
civil  law  as  to  equitable  estop))els  on  judgments,  342,  343 
conclasiveness,  101 

as  to  judicial  determinations,  100 
of  judgments,  100,  108 

as  evidence,  1417 

pleas,  1417 
of  other  states,  680,  681 
estoppel  in  pais  affecting  title  to  laud,  1054 
law  wliich  prevents  party  from  contradicting  his  deed,  707 
res  judicata  applicable  to  all  judgments,  42 

U.  S.  supreme   court  as   to  effect  given  to  federal  court  judgments, 
OUT,  098 
permitting  judgments  to  be  impeached  for  fraud,  425 
preventing  tenant  from  denying  landlord's  want  of  title,  980 
that  estoppels  must  be  certain  to  everj'  intent,  289 

mutual  api)lies  to  judgments,  147 
judgments  of  other  states  must  be  final  and  conclusive,  081,  682 
matters  that  might  have  been  litigated  are  concluded,  262,  263 
there  can  be  no  averment  against  validity  of  record,  1431 
■when  simultaneous  or  successive  contracts  cannot  be  denied,  255 
where  both  causes  of  action  cannot  be  the  same,  334 
one  acknowledges  title  in  another,  1010 

recognizes  claim  or  lien  of  another,  1010 
Rules — 

as  to  estoppels  on  states  and  the  federal  government,  1263,  1265 

judgment,  of  courts  of  general  jurisdiction,  07,  418 
limiting  the  conclusive  effect  of  judgments,  24 
of  probate  judgments  binding  on  federal  courts,  687,  688 
rea  judicata  defined  by  Paulus,  83 
Ulpian,  83 
Viunius,  85 
Voet,  84 

S. 
Safe- 
test  to  ascertain  whether  second  action  is  same,  96 
Sale— 

by  agent,  when  validity  of  cannot  be  disputed,  1100,  1101 
made  without  authority  validated  by  estoppel,  1053,  1054 
of  decedent's  real  estate,  conclusive,  379,  881 
land  as  free  of  lien  prevents  claiming  one,  1109 


are  to  pages.]  InDEX.  1G25 

Sale  (continued.) 

of  ^iroperty  by  possessor  thereof  estops  another,  1102 
under  proceedings  in  rem,  3-18 

ratification  and  acquiescence  in,  effect  of,  1189,  1191 

representauous  at,  when  binding,  903,  904 
Same — 

cause  of  action  must  be  supported  by  same  evidence,  331 
what  is,  90 

matters  cannot  be  adjudicated  more  than  once.  82 
in  issue,  how  determined,  330 
or  questions  when  litigated  are  concluded,  97 

point  in  issue,  what  is  meant  by,  105 

questions  subsequently  raised  not  re-examinable,  117 
Sanction — 

equivalent  to  prior  authority,  1215 
Salisfaction — 

of  judgment  in  replevin,  effect  of,  294 
Satisfying— 

judgment,  makes  it  res  judicata,  40 
Scire  facias — 

to  revive  judgments,  when  res  judicata,  215 
Scope — 

of  estoppels  -in  jmis,  861  '' 

Sealed  instrnnients — 

are  pleaded  by  way  of  estoppel,  1439 

conclusiveness  of,  707 

not  pleaded  are  waived,  1489 
Sealing  — 

and  delivering  by  surety  prevents  questioning  bond,  1138,  1147 
Second — 

appeal,  effect  of,  118 

recovery  cannot  be  had  on  an  entire  contract,  279 

suit,  judgment  in  when  a  bar  to  first,  252 
Secret — 

title,  when  partj^  cannot  set  up,  1056 

seeing  note  signed  w^ithout  giving  notice  of  defense,  1119 
Seller— 

when  notified  to  defend,  bound,  159 
Senator — 

declaring  one  duly  elected,  conclusive,  348 
Sentence — 

of  deprivation,  conclusive,  509 
expulsion,  conclusive,  509 
Sentences — 

of  foreign  courts  in  rem,  572,  573 

military  and  inferior  courts,  conclusive,  510,  517 


162G  Index.  >.  [Refemicea 

Separate — 

actions,  rule  as  to  one  first  determined,  334 

suits  in  state  aud  federal  courts,  284 
Servant — 

judgment  in  favor  of,  when  a  bar,  283 
Service — 

adjudication  of,  conclusive,  419 

distinction  between  none,  and  irregularity  in  obtaining,  421 

findings  as  to,  conclusive,  315 
Services — 

judgment  for,  bars  action  for  malpractice,  2G1  • 

Set-off— 

or  counter-claim  once  litigated,  barred,  279 

■when  of  nc  avail  against  judgment,  246 
Setting— 

aside  judgment  for  fraud,  doctrine  as  to,  453,  407 
Settlement — 

by  administrator,  executor  or  guardian  conclusive,  348 
Several— 

breaches,  when  must  be  subject  to  one  action,  255 

causes  of  action,  merged  in  judgment,  310 

presumed  to  be  merged  in  judgment,  257 

defendants,  judgments  in  favor  of,  a  bar,  302 

sums  due  and  payable,  when  actions  must  be  brought  for,  252 
Share-holders— 

bound  by  acquiescence  in  illegal  contracts,  1323 

not  allowed  to  deny  existence  of  corporation,  1399 

standing  by  when  bound  by  corporate  acts,  1323 
Sheldon  v.  Edwards- 
case  cf,  233,  240 
Sheriff- 
judgments  against,  Avhat  conclusive  of,  281 
Sheriff's  return— 

conclusive,  197,  199 

conclusiveness  of,  708,  701,  702 

effect  of,  965 

principles  of  conclusiveness  as  to,  539,  540 
Silence — 

and  acquiescence,  when  estoppels  as  to  land,  1062,  1063 

as  an  estoppel,  1069,  1097 

by  stock-broker,  when  an  estoppel,  1323 

in  insurance  company  in  regard  to  proofs  of  loss,  1349 
legal  proceedings,  963 

of  attorney  in  trial  of  case,  conclusive,  950,  951 

when  alone  insufficient  to  create  an  estoppel,  1088 
fraudulent.  900 


aretopages.^  j  InDEX.  1627 

Silence  (continued). 

when  it  becomes  fraud,  postpones,  1073,  1077 

party  should  assert  his  rights,  binding,  899 
regarded  as  fraud,  1092,  1093 
Silently- 
permitting  another  to  invest  money,  1193 
Solemn — 

admission  of  a  fact  an  estoppel,  751 

■which  have  the  force  of  estoppels  in  pais,  939 
Special- 
finding  of  jury,  when  final,  832 
verdict,  judgment  on,  when  conclusive,  566 
Specific- 
facts,  if  acted  upon,  constitute  an  estoppel,    751 
recitals  conclude  parties,  743 

of  good  title  binding,  754 
Specifying— 

one  objection  Avaives  others,  952 
Spiritnal  Courts — 

proceedings  of,  are  in  rem,  348 
Standing  by— 2 

and  sanctioning  a  sale,  876 

seeing  another  sell  land  without  objection,  1064 
without  objection  and  seeing  one  deal  with  property,  1192,  1193 
and  seeing  party  take  deed,  conclusive  as  to  boundary,  1274,  1275 
suffering  others  to  incur  expenses,  1360,  1361 
*  at  sale,  when  it  bars  dower,  853 
of  married  woman  when  it  binds  her,  1235,  1236 

minor,  when  an  estoppel,  1257,  1258 
what  is  meant  by  this  term,  1078 
Stare  decisis— 116,  123 

principles  upon  which  founded,  116,  123 
State  Court — 

decisions,  followed  by  United  States  supreme  court,  684,  689 
judgments  available  in  federal  courts,  109 

of,  binding  on  federal  courts,  684,  089 
State- 
doctrine  of  estoppel  by  deed  applicable  to,  810,  814 
estopped  by  act  of  legislature,  811 

acts  of  its  officers  within  their  power,  811,  812 
its  own  grant  and  warranty,  811 
location  of  boundary  lines,  1275 
only  can  question  forfeiture  of  charter,  1392,  1393 
when  concluded  by  judgment,  219 

estopped  from  denying  illegality  of  contract,  1152 


1G28  Index.  ^  [References 

States— 

when  estoppels  arc  applicable  to,  12G4 
where  probate  proceedings  may  be  set  aside,  390 
Statements — 

by  uiarriod  woman  that  she  is  divorced,  909 
in  one  transaction  l)inding  when  acted  upon,  7G2 
influencing  party  by  assent  binding,  1118,  1119 
inducing  contract  must  be  adopted  by  principal,  1206 
made  to  induce  others  to  act  on  binding,  1199 
mutually  agreed  on  and  recited  in  deed,  conclusive,  763 
of  maker  of  note  that  it  is  valid,  910 
fact  which  influences  part}',  900 
agent  are  statements  of  company,  1333 
agents  are  statements  of  principal,  1205,  1206 
principle  of  conclusiveness  of  judgments,  141,  142 
once  acted  upon,  when  binding,  895,  896 
or  recitals  in  deeds,  effect  of,  714 
when  acted  on  by  party,  conclusive,  1074 

which  cannot  be  contradicted  without  fraud  or  injury,  861,  862 
have  the  character  of  estoppels  in  pais,  862 
Statute — 

of  frauds  do  not  affect  estoppels  in  pais,  1054,  1055,  1061 
limitations,  waiver  of  plea  of,  955 
Statutes — 

adjudication  on  conclusive,  344,  348 
decree  construing  conclusive,  480 
Statutory — 

abolishment  of  fictitious  forms  in  ejectment,  221 
and  common  law  dedications,  1278 
construction  should  be  followed,  123 
rights,  waiver  of,  955,  961,  963 
Stay- 

of  execution,  conclusive  effect  of,  425 
Stipulations — 

by  attorney  of  record,  964 
Stockholder — 

application  of  equitable  estoppels  to,  1394,  1400 

attending  meetings,  cannot  deny  validity  of  subscription,  1394 

bound  by  inducing  others  to  subscribe,  1094 

judgments  against  corporations,  164,  165 
cannot  deny  paying  the  first  installment,  1400 

prove  prove  corporation  illegally  created,  1395 
question  validity  of  corporation,  1393,  1400,  1401 
regularity  of  organization,  1400,  1401 
paying  calls  cauuot  deny  existence  of  company,  1394 

validity  of  subscription,  1396,  1399 


are  to 2yages.]  InDEX.  1629 

Stockholder  {continued). 

receiving  dividends  cannot  disclaim  ownership,  1399 
^vhen  he  cannot  question  legality  of  corporation,  1405 
Strangers — 

allowed  to  impeach  judgments  for  fraud,  452 
may  prove  judgment  was  obtained  by  fraud,  412,  452 
neither  bound  by  nor  take  advantage  of  estoppels,  T20,  850 
not  bound  by  estoppels  by  deed,  707 

personal  judgments,  140,  147 
to  deed  cannot  take  advantage  of  recitals  therein,  754 

judgment  cannot  take  advantage  of  res  judicata,  114 
when  bound  by  estoppels  by  deed,  719 
not  bound  by  recitals  in  deeds,  741 
they  may  take  advantage  of  judgment,  334 
who  cannot  take  advantage,  not  bound  by  estoppels,  14 
Subscriber — 

cannot  denj^  legality  of  his  subscription,  1398 

take  advantage  of  defects  in  organization,  1398 
for  stock  cannot  question  validity  of  charter,  1389 
to  stock  in  corporation  acting  as  officer,  etc.,  1395 
when  cannot  question  corporate  existence,  1395 
Subscribing- — 

to  stock  in  corporation  recognizes  its  validity,  1394 

admits  its  legal  existence,  1395 
Subject-matter — 

must  be  same  in  both  actions,  104 
Subsequent — 

legislative  authority  ratifies  issue  of  municipal  bonds,  1381 
purchaser  with  knowledge  of  estoppel,  bound,  1079 
ratification  binds  owner  as  to  a  sale,  1053 

by  municipal  corporation  binding,  1219 
state  legislature,  when  conclusive,  12G5 
doctrine  in  regard  to,  1212,  1214 
equivalent  to  prior  authority,  1211 
relates  back  to  what  time,  1214 
Substance^ 

only  necessary  to  be  decided  to  create  a  bar,  480,  481 
Successor— 

when  entitled  to  benefit  of  a  judgment,  185 
Successors — 

who  are,  183 
Sufficiency— 

of  service,  admission  of,  conclusive,  419 
Sui  juris— 

parties  ordinarily  must  be,  to  create  estoppel  by  deed,  714 


1630  Index.  [ne/ercnces 

Suinsj— 

for  proceeds  of  goods  affirms  sale,  1183 
Suit— 

definitioa  of,  26 

by  principal  on  agent's  contract,  1219 
Summary — 

of  doctrine  applicable  to  judgments  of  other  states,  V02,  703 
as  to  estoppels  affecting  title  to  land,  1298 

Sunday- 
contracts,  1155 

Superior  Courts- 
distinction  between  and  inferior,  397,  399 
judgments  of,  conclusive  in  themselves,  397 

without  jurisdiction,  397 
presumptions  in  favor  of,  412 

Supervisors — 

allowance  of  claim,  when  conclusive,  518 
approval  of  bond  by,  conclusive,  519 
conclusiveness  of  proceedings  of,  521 

general  principles  of  conclusiveness  of  their  actions,  517,  524 
proceedings  of  not  subject  to  collateral  attack,  520 
when  conclusive,  517,  524 

Supreme  Court— 

of  United  States,  doctrine  as  to  estoppels  in  pais,  1057,  1059 
proceedings  in  ejectment  in,  221,  222 

Sureties — 

delivering  papers  to  principals  for  further  signatures,  1124 
doctrine  as  to  effect  of  judgments  on,  199,  201 

judgments  against  principals,  168,  177 
on  bonds  estopped  by  recitals  therein,  767,  772 
Surety — 

cannot  deny  his  position,  1223 

question  delivery  of  bond  by  principal,  1138,  1147 
discharge  of,  when  dependent  on  eciuitable  estoppel,  1223 
estopped  from  setting  up  defense  personal  to  principal,  1116 
making  principal  his  agent  to  deliver  bond  bound,  1138,  1147 
not  bound,  but  may  be  by  act  of  principal,  1138,  1140 
on  bond  of  insurance  agent,  concluded,  1357 
promise  of,  when  binding,  1183,  1184 
wdieu  estopped  by  act  of  principal,  1116 
judgment,    199 
from  showing  his  true  character  as  such,  1224 
to  deny  validity  of  bond,  1118 
he  may  avail  himself  of  an  estoppel,  1419 
take  advantage  of  judgment,  334 
notified  to  defend,  bound,  159 


are  to  2}age8.]  ,  InDEX.  1631 

Surrender — 

by  operation  of  law,  what  is,  1004 
effect  of  estoppels  in  pais  on,  1200 
how  affected,  1004 

of  premises  terminates  the  estoppel,  1003 
when  contract  or  agreement  takes  effect  as,  1004 
Surviving— 

partner  cannot  impeach  grantee's  title  of  other  partner,  829 


T. 
Taking — 

conveyance  from  corporation  admits  its  existence,  1401 
Tax- 
collector  cannot  question  county's  right  to  tax,  1016 
deeds,  doctrine  in  regard  to,  831,  833 
liens,  foreclosure  of,  conclusive,  348 
return,  when  party  estopped  to  deny  correctness  of,  708 
Taxpayer- 
petitioning  city  council  to  make  improvements,  bound,  1361 
bound  by  judgments  against  city  or  county,  1G6 
Technical- 
estoppels  must  be  pleaded  with  great  strictness,  1429 
Technicality — 

of  estoppel,  when  will  be  restrained,  11 
Telegrapli  dispatclies — 

party  sending  on  blanks  of  company,  1154 
Tenancy — 

by  estoppel,  how  created,  969 
Tenant — 

after  lease  expires  may  assert  any  title  he  has.  984 
at  sufferance,  not  admitted  to  question  lessor's  title,  1293 
bound  by  allowing  person  to  put  up  sign,  890 
by  surrender  of  title,  ends  the  estoppel,  998 
cannot  assert  adverse  title  until  he  surrenders  possession,  998 
claim  by  title  purchased  from  stranger,  984 
title  by  adverse  possession,  ]2"J1 
by  outstanding  title  while  in  possession,  983 
deny  his  landlord's  title,  979 

landlord's  title  during  existence  of  lease,  984 
origin  of   rule,  979 
without  disparaging  his  own,  987 
that  landlord  had  title,  995,  996 
the  title  of  the  heir  of  lessor,  984 
title  until  term  expires,  997 
hold  adverse  possession  during  term,  837 


1032  Index.  [References 

Tenant  {continued). 

cannot  impeach  landlord's  title  at  commencement  of  demise,  983,  984 
plead  paramount  title  in  another  during  term  of  lease,  979 
question  title  at  time  lease  is  made,  995 
set  up  adverse  possession  against  landlord,  1291 

title  during  continuance  of  lease,  984 
inconsistent  with  lease,  983 
when  cannot  set  up  deed  of  third  i)ersons,  979 
concluded  by  judgment  iu  ejectment,  224 

to  deny  possession,  224 
estoppel  of,  by  accepting  lease,  988 

holding  over  after  expiration  of  lease,  988,  989 
continues  during  lease,  988 

extends  to  all  persons  coming  iu  under  him,  987,  989 
in  actions  for  rent,  987 

to  recover  possession,  987 
case  of  defective  title  of  landlord,  987 
the  essence  of  his  contract  of  lease,  987 
to  plead  nil  hdhitlt,  etc.,  988 
for  limited  period  cannot  deny  landlord's  title,  979 
holding  under  husbantl  cannot  deny  his  sei/in,  852 
in  common  cannot  show  mistaiie  in  title  of  co-tenant,  751,  754 
effect  of  conveyance  ijy  warranty,  829 
possession,  when  concluded  by  judgment  in  ejectment,  221,  222 
may  show  landlord's  title  has  expired,  995,  99G 
must  first  surrender  possession  before  disputing  title,  973 

surrender  possession  before  disputing  landlord's  title,  985 
of  heir  cannot  deny  ancestor's  title,  851 

mortgagor  when  he  may  set  up  paramount  title,  999 
purchaser  from  bound  iu  same  manner,  989 

renting  from  agent  cannot  dis[)ut.e  unnanuKl  landlord's  title,  973 
under  void  lease  cannot  dispute  landlord's  title,  9G9,  970 
when  he  cannot  deny  landlord's  title,  lUOl 

set  up  adverse  title,  1293,  1294 
want  of  seizin,  852 
obtains  title  by  estoi^pel,  S35,  837 
Tenants— 

and  their  privies  estoi)ped  from  disputing  landlord's  title,  972 
how  affected  by  judgments  in  ejectment,  221 
in  conunon,  purcluise  by  one  benefits  ail,  1000 
■when  estopped  from  denying  parol  partition,  1290 
Tender — 

plea  of,  as  a  bar,  903.  9G4 

what  it  conclusively  admits,  904,  905 
Term — 

"  equitable  estoppel,"  origin  of,  S05,  806 


are  to  pages.]  InDEX.  1633 

Term  (continued). 

"  judgment  in  rem,''^  derivation  of,  344 

"parties,"  defined,  146,  149 

^Wes  judicata^''''  what  included  in,  130 

"  superior,"  "inferior,"  "limited,''  and  "general,"  defined,  398,  399 

"  willfully,"  explained,  880,  1085 

what  understood  by,  4 
lapse  of,  when  it  bars  relief  against  judgment,  464 
Test- 
to  ascertain  whether  both  actions  are  the  same,  1422,  1423 

determine  whether  actions  are  several  or  distinct,  254 
when  it  is  doubtful  whether  second  action  is  same,  96 
whether  two  actions  are  the  same,  302 
Third- 
parties  neither  injured  nor  benefited  by  admissions,  88 
not  affected  by  judgments  or  decrees,  114,  115 
bound  by  judgment  in  ejectment,  224 
persons  responsible  if  notified  to  defend,  159 

when  affected  by  estoppel  by  deed,  719 

protected  l)y  probate  proceedings,  394 
they  may  impeach  probate  proceedings,  394 
Time — 

in  which  action  should  be  brought  to  obtain  relief,  464,  465 
necessary  to  fix  boundary  lines  by  estoppel,  1266,  1267 
of  rendition  of  judgment,  immaterial,  126 
Title— 

after-acquired,  passes  only  by  warranty,  809 

when  it  inures  by  lease,  834 
by  estoppel,  affects  after-acquired  real  property  of  mortgagor,  796 
apjjlies  in  cases  where  parties  mortgage  land,  796 
arises  where  party  conveys  without  title,  785 
bars  vendor  from  setting  up  after-acquired  legal  title, 786,  798 
binds  what  parties,  778,  779 

classes  of  cases  applicable  to  at  civil  law,  779,  780 
conclusive  on  parties  and  privies,  805 
contingent  remainder  may  pass  by,  817 
covenant  of  warranty  necessary  to  create,  788 

to  create  must  run  with  the  land,  808 
coyenants  in  mortgage  that  creates,  794 

that  operate  so  as  to  create  a,  783 
which  create,  782 
created  by  deed  with  warranty,  806 

warranty  in  a  mortgage,  795 
deed  of  attorney,  when  it  passes,  816 
definition  of  the  doctrine  of,  777,  778 
depends  on  meaning  of  the  deed,  782 
103  ( 


1634  Index.  [Re/erenees 

Title  (continued). 

by  estoppel  depends  upon  intent  of  parties  to  the  conveyance,  797 
the  meaning  of  the  instrument,  795 
doctrine  applies  to  states,  810,  812 

as  to  passing  mortgagor's  after-acquired  title,  783 

in  regard  to,  821,  824 

of  applicable  to  mortgages,  783 

founded  on  principles  of  morality,  805 
in  its  application  to  defeasible  deeds,  803 
effect  of,  777,  778 

covenants  to  pass,  797 
essential  requirements  necessary  to  create,  784,  785 
exceptions  to  the  doctrine  of,  799 
extends  to  all  who  derive  title  from  grantor,  794 
heir,  deed  of,  when  it  creates  a,  785 
how  created,  802,  805 

enforced  in  equity,  799 
illustration  of  under  a  mortgage,  800 
in  cases  of  defective  title,  779 

conveyance  by  warranty  without  title,  778 
instruments  which  do  not  pass,  780 
inures  instantly  on  grantor's  obtaining  it,  805 
to  beneilt  of  grantee,  777 
grantee,  when,  778 
mortgagee,  791,  794 
with  same  effect  as  if  passed  by  deed,  791 
it  applies  to  mortgages,  794,  795 
may  transfer  homestead  estates,  798 

must  be  one  obtained  after  execution  of  interest,  800,  801 
nature  of  which  vests  in  mortgagee,  801,  802 
no  particular  form  of  words  necessary  to,  824 
none  by  deed  of  simple  release,  784 

in  covenant  of  non-claim  in  Maine,  789 
(.  where  covenant  is  extinguished,  788,  789 

deed  contains  title,  820 
interest  passes  by  deed,  781,  782 
not  regarded  as  a  distinct  transfer  of  real  estate,  781 
of  grantee  in  conveyance  by  agent  or  attorney,  790 
of  husband  and  wife,  790 
lessee  or  grantees,  797 

patentee,  when  it  inures  to  grantee,  785,  786 
purchaser  of  equitable  title,  790 

under  execution  sale,  790 
old  rule  of  law  relating  to,  787 

operates  against  party  conveying  by  warranty  deed,  807 
ordinary  and  extraordinary  effect  of,  781 


are  to  pages.]  InDEX.  1635 

Title  (continued). 

by  estoppel  parties  and  privies  bound  by,  805 

passes  after-acquired  estate  which  vests  in  mortgagor,  795 
an  estate  in  conformity  to  the  deed,  787 
estate  conveyed  by  woman  before  marriage,  791 
legal  title  when  patent  issues,  792 
the  interest  of  an  heir,  807,  815,  818 
though  party  is  discharged  as  bankrupt,  806 
to  grantee  free  from  incumbrances,  792 

if  subsequently  acquired,  786 
with  the  land,  817 
prevents  grantor  from  setting  up  homestead  right,  786,  798 

heirs  denying  grantee's  title,  792 
principles  relating  to,  792,  803 

upon  which  founded,  803,  806 
protects  a  purchaser  from  patentee,  786 
recital  that  creates,  778 
recitals  in  conveyance  that  pass,  780,  781 
which  create,  786 
requires  covenant  of  warranty  in  deed  to  create,  787,  788 

good  and  valid  deed  to  create,  807 
rule  that  interest  feeds  the  estoppel,  777 
runs  with  land,  787,  806 
statutory  provisions  passing,  789 
striking  instances  of,  777 
under  deed  from  corporation,  793 

quit-claim  deed,  798 
vests  in  grantee  the  estate  intended,  805 
when  it  bars  guardian,  807 

created  by  intention  of  parties,  782 
it  includes  after-acquired  legal  title,  782,  783 
inures  to  grantee,  806 

and  his  heirs,  792 
mortgagee,  779,  796 
passes  by  release  of  mortgage,  797 
will  not  inure  to  grantee  or  tenant,  780,  788 
words  in  deed  that  convey,  815 

which  pass  a  title  by,  815,  816 
by  judgments,  213 

cannot  be  set  up  by  tenant's  privy,  983 
concealment  at  lime  of  purchase,  an  estoppel,  1082 
decree  of  probate  court,  when  conclusive  on,  391 
judgments  in  questions  of,  of  what  conclusive,  203 

on,  when  conclusive,  199 
to  land,  application  of  estoppels  iiijxiis  to,  1053,  1111 

may  be  affected  by  equitable  estoppels,  866,  868 


1636  Index.  IRe/erenca 

Title  (continued). 

to  real  estate  may  be  baired  by  matters  in  pais,  1061 

propert}'  judgments  on,  couelusive  in  other  states,  683,  685 
tried  in  action  for  tresi)ass  conclusive,  258 
must  have  been  tried  to  be  affected  by  judgment,  295 
party  alleging  it  to  be  in  another,  bound,  340 
■when  former  judgment  may  be  conclusive  on,  238 
it  inures  to  co-tenants,  1000,  1001 
settled  in  action  of  ejectment,  224,  227,  229 
Tort- 
judgment  in  without  satisfaction,  effect  of,  325 
Transaction — 

cannot  be  affirmed  in  part  and  rejected  in  part,  927 
Transfer — 

of  negotiable  instruments,  estoppel  by,  1122 
stock,  effect  of  as  an  estoppel,  1393 

Avhen  corporation  bound  by,  1325,  1826 
Traversable — 

facts  adjudicated  conclusive,  238 
Ti'eating — 

and  occupying  up  to  a  boundary  line,  12G8 
forged  notes  as  valid,  estoppel  by,  1122 
Trespass — 

aud  torts,  general  rule  as  to  judgments  in,  325 
judgment  in  favor  of  defendant,  bars  action  for  money,  310 
bars  an  action  of  assumjjsit,  235 
when  bars  action  of  trover,  300 
or  trover,  judgment  in  bars  other  action,  248 

does  not  transfer  title,  213 
when  no  bar,  292,  293 
quare  clausum  f  regit  judgment  in,  in  ejectment,  334 
without  satisfaction,  judgment  when  no  bar,  333 
Tribunal — 

having  no  authority,  cannot  give  valid  judgment,  52 
Tribnnals — 

which  must  determine  their  jurisdiction,  412 
Trial  court — 

bound  by  prior  decision,  118 
must  follow  decree  of  appellate  court,  118 
Trover — 

judgment  in  favor  of  carrier,  effect  of,  335 

for  jiart,  bars  action  for  residue,  245 
one  of  several  actions  of,  when  a  bar,  245 
when  a  bar  to  an  action  for  trespass,  245 
Tmstee— 

and  cestui  que  trust  bound  by  acquiescence,  1196 


are  to  pages.]  INDEX.  16B7 

Trustee  {continued) . 

bound  by  judgment  against  receiver,  167 
judgment  against,  effect  of,  476 

Trustees- 
affected  by  estoppel  in  pais^  928 

Truth— 

when  it  appears  in  an  instrument  no  estoppel,  722 
one  is  estopped  from  alleging,  1119 

Two  or  more — 

eflfect  of  judgments  against,  283 

U. 
Ulpian''s — 

doctrine  of  res  judicata,  84 
Ultra  Tires — 

can  only  be  raised  by  sovereign  creating  corporation,  1319 

doctrine  in  regard  to  corporations,  1316,  1318 
Uuappealable — 

judgments  res  judicata.,  40 
Uncertainty — 

in  record,  effect  of,  112 

may  render  judgment  void,  47 
Under-tenant — 

cannot  dispute  title  under  which  he  claims,  972 
Unknown  owners — 

when  bound  by  judgment  in  partition,  303 
United  States — 

bound  as  to  boundary  lines  by  estoppel,  1269 

courts  follow  state  practice  in  ejectment  cases,  225 
are  of  limited  jurisdiction,  398,  399 
effect  of  dismissal  of  bill  by,  473 
how  jurisdiction  obtained,  399,  400 
limited  but  not  inferior  jurisdiction,  400 

government  bound  in  case  of  administration,  382 

not  ordinarily  bound  by  estoppels,  810 

supreme  court  doctrine  as  to  judgments  of  other  states,  601,  626 
of  as  to  void  judgments,  54,  59 

when  not  concluded  by  judgment,  216,  217 

where  thej''  go  into  court  bound  like  private  parties,  217,  218 
Universal- 
effect  of  judgment  in  rem,  355 

rule  as  to  doctrine  of  res  judicata,  188,  134 
Unreversed — 

judgment  final,  100 
Uses — 

of  records,  17 


1638  Index.  [References 

Usurious — 

interest  cannot  be  recovered  back  after  judgment,  47 
Usury— 

when  mortgagor  prevented  from  pleading,  1019,  1033 
party  prevented  from  plending,  1136,  1137 
Utility— 

of  estoppels  in  pais  in  cases  of  negotiable  paper,  1114,  1115 

V. 
Valid- 
judgments  necessary  to  plea  of  res  judicata,  65 
Validity— 

of  administration  cannot  be  questioned  collaterally,  379 
bonds  secured  by  mortgage  cannot  be  questioned,  1051 
corporations,  when  they  cannot  be  questioned,  1393,  1409 
judgment  depends  on  jurisdiction  of  cause  and  person,  65 
mortgage  cannot  be  collaterally  questioned,  1059 
payment  to  executor  on  forged  letters,  382 
proceedings  in  courts  depends  on  jurisdiction,  379,  380 
where  jurisdiction  attaches,  380 
release  cannot  be  questioned  by  party  making,  1051 
sale  of  estate  by  probate  court  proceedings,  379,  381 
Variety — 

of  judgments,  27 
Vattell's— 

doctrine  in  regard  to  foreign  judgments,  572 
Vendee— 

by  reciting  title  in  his  deed  cannot  deny  it,  1191 
failing  to  set  up  fraud,  barred  by  judgment,  280 
in  possession  cannot,  against  vendor,  buy  oatstanding  title,  1002 
dispute  title  of  vendor,  809,  810 
set  up  outstanding  title,  993 
rejecting  deed  on  one  ground  cannot  set  up  another,  1169 
when  concluded  by  judgment,  299 

not  precluded  from  disputing  vendor's  title,  820 
by  allowing  purchaser  to  execute  mortgage,  bound,  1040 
Vendor — 

cannot  dispute  mortgage  executed  by  vendee,  1049 

concluded  by  receiving  benefits  of  contract,  908 

of  note  cannot  deny  genuineness  of  signatures,  1126 

purchaser  cannot  deny  title  of,  1008 

when  bound  by  collusion  with  vendee,  1102 

not  allowed  to  impeach  sale,  1102 
after-acquired  title  inures  by  estoppel,  777,  778 
conveyance,  when  it  passes  after-acquired  legal  title,  789,  790 
after-acquired  title,  when  it  inures  to  vendee,  786,  787 


are  to  pages.]  IndEX.  1639 

Vendor  (continued). 

estopped  by  recitals,  76V,  V73 

lien,  when  merged  in  judgment,  560 

widow,  when  she  cannot  set  up  outstanding  title,  1002,  1003 
Terbal — 

agreements,  when  conclusive,  863 

contract  to  insure,  when  binding  on  company,  1332 
Verdict- 
agreed  upon  as  final,  conclusiveness  of,  566 

efifect  of,  when  it  depends  upon  extrinsic  evidence,  293 

for  defendant,  for  recovery  of  chattel,  when  conclusive,  238 

in  ejectment,  effect  of  in  action  for  mesne  profits,  223 

judgment  on,  when  conclusive,  566,  567 

on  special  and  common  counts,  distinction  between,  103 

rule  as  to  conclusiveness  of,  566 

when  conclusive,  566 
Verity — 

of  records,  21 
Vinnius — 

definition  of  res  judicata,  85 
Visitor — 

of  corporation,  sentence  of,  when  conclusive,  509 
Voet's— 

definition  of  res  judicata,  84 
Void— 

and  voidable  judgments,  50,  51 

distinction  between,  501*,  506 

contract  merges  in  judgment,  565 

judgment  against  infant  is,  if  not  represented,  180 
for  uncertainty,  52 
is  one  not  against  party  to  proceeding,  52 

rendered  by  court  giving  party  no  hearing,  110 
one  pronounced  by  tribunal  without  authority,  52 

judgments  are  those  without  notice,  311 

that  are,  in  other  states,  682,  683 
Voluntary — 

payment  of  judgment,  effect  of,  341,  342 

or  submission  to  judgment  res  judicata,  40 

payments  cannot  be  recovered  back,  1182,  1183 

W. 
Wadliam  t.  Gay — 

73  111.  415,  questioned,  43 
Wages- 
judgment  for,  when  a  bar,  283 
when  they  must  be  recovered  in  one  action,  250,  251 


1 G40  Index.  [References 

Waiver — 

agents  binding  on  corporations,  1331,  1332 
by  accepting  part  of  amount  due,  1198,  1199 
accused  in  criminal  cases,  488,  490 
appealing  from  judgment,  943 

special  points,  953 
appearing  and  pleading,  942 
attorney,  binding  on  client,  941 
of  defects  in  writ,  941 

objections,  when  conclusive,  941 
right  of  appeal  binding,  941 
when  conclusive  in  a  cause,  951 
bringing  up  partial  appeal,  953 
corporations,  binding,  1323,  1324 
company  consenting  to  assignment  of  policy,  1344 
consenting  to  amendment  of  judgment,  946 
debtor  at  judicial  sales  binds  him,  1189 
disclaimer  of  title,  947 
failing  to  demand  a  jury  trial,  95T 
object  to  a  deed,  948 
make  defense  to  an  action,  946 
object  to  jurors,  956,  957 
take  advantage  of  defective  pleadings,  945 
going  to  trial  on  defective  plea,  946 

without  objection  to  defects,  945 
insurance  company  as  to  other  insurance,  1344,  1345 
objecting  to  the  suiBciency  of  a  writ,  953 
preliminary  proofs  of  loss,  1348,  1353 
written  admissions  in  a  cause,  948 
effect  of  in  probate  courts,  953 
in  criminal  cases,  945,  946 
jury  trial,  956,  964 
pleading  an  e&toppel  by  deed,  1437 
trial  of  causes,  an  estoppel,  940 
of  breach  of  conditions  by  accepting  rent,  1173,  1174 
conditions  in  insurance  policies  by  agents,  1331,  1332 
defects  in  process  conclusive,  942 
demurrer,  by  pleading  over,  945 
errors  by  consenting  to  judgment,  49 
exemption  of  homestead,  962 

forfeiture  of  payment,  binds  insurance  company,  1346 
fraud  in  contract,  effect  of,  1171 
liens,  965,  966 

matters  in  proceedings  in  inferior  courts,  952,  953 
objections  by  specifying  one,  952 

when  record  is  offered  in  evidence,  1411 


are  to  pages.]  InDEX.  1641 

Waiver  {continued). 

of  one  defense  by  setting  up  another,  947 
right  of  exemption,  962 

to  poll  jury,  957 
service,  by  applying  for  continuance,  943 

moving  to  dismiss,  943 
statutory  and  constitutional  rights,  955 
when  it  estops  party  from  questioning  jurisdiction,  451 
what  it  is,  its  effect  as  to  estoppels,  954,  955 
Waiving — 

an  estoppel,  1410,  1449 
defects  in  petition  conclusive,  945 
misnomer,  binding  on  party,  945 
Want— 

of  jurisdiction,  when  it  may  be  given  in  evidence,  1431 

knowledge  is  negligence  which  may  create  an  estoppel,  896 
Warehouse — 

receipts,  application  of  estoppels  to,  1587,  1388 
Warehouseman — 

when  estopped  by  issuing  receipt,  1387,  1388 
bound  by  their  receipts,  1105,  1106 
Warranty — 

against  particular  outstanding  title,  eflfect  of,  825 

warranty,  effect  of,  713,  722 
and  covenants  of  non-claim,  have  same  effect,  789,  790 
covenant  of,  a  perpetually  operating  one,  814 

binds  all  parties  claiming  under  grantor,  814 
effect  of  in  the  deed,  805,  806 
when  extinguished,  effect  of,  789 
grantor  cannot  controvert,  818 
has  same  effect  as  recital  in  deed,  814 
in  administrator's  deed,  791 
party  not  allowed  to  claim  against,  814 
prevents  bringing  ejectment  on  after-acquired  title,  814 
which  runs  with  land,  operate  as  estoppels,  806 
creation  of  estoppel  bj-,  803,  805 
creates  an  estoppel  which  binds  grantor,  783 
effect  of  covenant  of,  788,  789 
deed  with,  always  passes  after-acquired,  title,  802 
estoppel  by,  foundation  of  doctrine,  805 
of,  conveyance  depends  on,  788 
may  be  restricted,  825 
how  it  may  be  qualified,  826 

passes  after-acquired  title  according  to  intent,  802,  803 
release  with,  passing  after-acquired  estate,  808 


1642  Index.  [References 

Well— 

established  principles  of  mercantile  law  should  be  followed,  1 23 
What— 

a  judgment  is,  25,  26 
suit  is,  26 

title  by  estoppel  is,  712 
acquiescence  sufficient  to  create  equitable  estoppels,  901 
adjudications  are  in  the  nature  of  judgments  in  rem,  374 
an  action  is,  26 
constitutes  a  record,  23 
creates  an  estoppel  by  judgment,  280,  326 
decisions  of  state  courts  followed  in  federal  courts,  684,  689 
defenses  allowed  on  judgment  of  other  states,  666,  667 

are  merged  in  judgment,  129,  130 
facts  judgment  conclusive  of,  294 
is  an  entire  judgment,  250 
jurisdiction,  68,  69 

meant  by  an  estoppel  being  mutual,  242 
requisite  to  valid  judgment,  34 
sufficient  to  create  an  equitable  estoppel,  901 
the  same  cause  of  action,  91,  92 
demand,  90 
judgments  may  be  sued  on  in  other  states,  612 
jurisdiction  depends  upon,  68,  69 

may  be  shown  by  evidence  in  aid  of  estoppels,  234,  235 
matters  are  included  in  judgments,  134 

included  in  record  of  judgment,  325,  326 
term  res  judicata,  130,  133 
necessary  to  apply  equitable  estoppels  to  land,  1070,  1098,  1119 
constitute  dedication,  1279,  1286 
create  an  estoppel  in  pais,  910,  912,  1057 
enforce  the  operation  of  estoppels,  906 
fix  acquiescence  on  party,  1193 
maintain  plea  of  res  judicata,  104 
make  judgment  conclusive  on  parties,  149 

res  judicata,  38,  39 
prevent  married  women  claiming  her  rights,  1236 
raise  admissions  to  dignity  of  estoppels,  917 
valid  confirmation  by  cestui  que  trust,  1226 
ratification,  1215 
official  acts  municipal  corporations  may  ratify,  1218,  1219 
parties  bound  by  judgment  in  ejectment,  220,  231 
record,  146 
must  show  to  assert  equitable  estoppels,  901 
principles  apply  to  sureties,  169,  178 
record  must  show  in  plea  of  res  judicata,  325 


are  to  pages.]  INDEX.  1643 

TFhat  (continued). 

representations  are  to  be  regarded  as  willful,  880 
required  of  a  party  in  order  to  plead  estopi)els,  1449 
strangers  are  allowed  to  impeach  judgments  for  fraud,  452 
term  "  due  process  of  law,"  imports,  70,  71 
was  actually  decided  may  be  shown  by  parol  evidence,  237 
will  estop  party  from  questioning  jurisdiction,  451 

prevent  lease  from  operating  as  estoppel  on  lessee,  995 
render  judgments  admissible  in  second  suit,  281,  282 
When— 

a  cause  is  decided  between  same  parties,  169,  178 
man  becomes  a  privy,  150,  151 
matter  is  finally  adjudicated,  it  is  res  judicata,  133 
all  subsequently  coming  in  are  bound  by  estoppels,  817 
appellate  court  not  bound  by  its  judgment,  121 
an  after-acquired  title  passes  to  lessee,  840,  842 
allegation  or  recital  is  conclusive,  723 
estoppel  by  deed  is  removed,  1489 
can  never  be  allowed,  10 
may  constitute  a  title,  817 
sets  the  matter  at  large,  713 
cause  of  action  is  merged  in  judgment,  129,  130 
courts  having  jurisdiction  may  render  void  judgments,  73 

may  re-examine  questions  once  decided,  123 
date  and  place  of  rendition  of  judgment  immaterial,  126 
effect  of  record  depends  on  jiarol  evidence,  243 
estoppel  appears  from  pleadings,  not.necessary  to  plead,  1426 
is  well  founded,  925,  926 
in  pais  must  be  plead,  1442 

will  affect  third  persons,  922,  923 
is  waived,  jury  bound  to  find  the  truth,  1438 
must  be  plead  by  way  of  replication,  1440 
of  tenant  to  deny  landlord's  title  expires,  984 
evidence  admissible  to  make  judgment  available  as  a  bar,  1416 

outside  of  record  may  be  resorted  to,  112 
facts  in  second  suit  sustain  first  judgment,  it  bars,  96 
grantee  may  and  may  not  deny  title  of  grantor,  1012 
grounds  of  judgment  must  be  proved  by  record,  1417 
it  becomes  duty  of  court  to  apply  estoppels,  1441 
a  judgment  bars  subsequent  suit,  331 
judgment  becomes  absolute  verity,  70 

conclusive  as  to  landlord  and  tenant,  283 
for  part  of  demand  bars  action  for  residue,  246 
in  trover  bars  action  for  trespass,  245 
not  conclusive  on  questions  of  title,  1438 
on  the  merits  is  a  bar,  278 


1644  Index.  [References 

When  {continued). 

judgments  are  interlocutory,  27 
void,  52 
may  be  impeached  collaterally,  52 
will  not  be  conclusive  between  same  parties,  299,  300 

jurisdiction  attaches,  proceedings  conclusive,  74 

jury  may  decide  without  regard  to  estoppels,  1411 

landlord  has  neither  title  or  jjossession,  no  estoppel  arises,  907 

parol  evidence  admissible  to  aid  record,  234,  235 

a  party  is  estopped,  2 

party  cannot  plead,  estoppel  conclusive  in  evidence,  1411 
concluded  by  voluntarily  pajang  money,  1182,  1183 
may  demur  to  plea  of  estoppel,  1440 

give  estoppels  in  evidence,  as  if  pleaded,  1441 

plaintiff  or  defendant  may  avail  themselves  of  estoppel  by  record,  97 

plea  of  former  action  will  not  be  good,  105 

principal  must  affirm  or  disaffirm  agent's  acts,  1216 

prior  mortgage  will  be  postponed,  1036,  1037 

ratification  may  be  presumed,  1216 

recovery  of  part  bars  action  for  residue,  246 

rights  of  parties  are  decided,  it  is  final,  117 

silence  a  ratification  of  agent's  acts,  1216 

several  actions  pending,  first  judgment  a  bar,  126,  336 

states  are  estopped,  810,  814 

there  is  res  judicata,  original  cause  of  action  merged,  133 

title  to  land  in  issue,  judgment  conclusive,  222,  224 
Whenever — 

same  question  has  been  decided,  it  is  res  judicata,  108 
Where— 

an  estoppel  passes  with  the  land,  817 

defense  is  by  special  plea,  estoppel  must  plead  specially,  1426 

no  mutuality,  plea  of  estoppel  unavailable,  1441 

one  of  two  persons  must  suffer  by  another's  acts,  891,  892 

party  fails  to  make  rights  known,  he  is  estopped,  914 

point  in  issue  has  been  decided,  judgment  bars,  332  ' 

the  record  is  coram  non  judice,  24 
truth  appears  in  the  record,  24 
Willful- 
representation  necessary  to  create  an  estoppel,  912 
Will- 
effect  of  probate  of,  383,  385 

election,  ratification  or  confirmation  of,  1162 

heir  cannot  take  under,  and  in  hostility  to,  756 

probate  of,  conclusive,  377 

nature  and  effect  of,  346 


are  to  pages.']  InDEX.  1645 

Will  {continued). 

recitals  in,  effect  of,  756,  757 

of,  in  deed,  prevents  disputing  its  validity,  756 
Willfully- 
causing  one  to  believe  in  existence  of  certain  things,  3,  4 
defined,  4 

meaning  of,  in  the  creation  of  equitable  estoppels,  880 
Without — 

service,  judgment  in  personam  void,  69 
Witnesses— 

to  deeds,  when  prevented  from  setting  up  prior  liens,  1043,  1046 
Woman — 

married,  bound  by  declaration  of  ownership,  917 
estate,  effect  of,  grant  of  letters  on,  378 
vrho  may  take  advantage  of  estoppel  against,  1439 
misleading  officer,  cannot  deny  her  representation,  916 
Words — 

"grant  "  and  "  demise,"  effect  of,  in  lease,  846 
Jiv\\— 

of  entry,  when  a  bar,  224,  225 

error  dismissed,  makes  judgment  final,  122 
Writing — 

matter  in,  estoppel  by,  707,  858 

principles  applicable  to,  707,  858 
name  on  blank  paper,  when  it  binds  party,  1125,  1126 
Written— 

contract  cannot  be  varied  by  parol  proof,  708 
instruments  unnecessary  to  dedication,  1283 
Wrong — 

coupled  with  injury,  necessary  to  estoppels  in  pais,  911,  912 
Wrongdoers — 

judgment  against  one  of  two,  affects  both,  249 
Who— 

are  included  in  the  term  "  parties,"  146 
regarded  as  the  same  parties,  88 
strangers  to  a  record,  146 
bound  by  estoppels,  14 

judgments,  147,  148 

i7i  rem,  344 

a  record  imports  absolute  verity,  19,  20 
court  has  no  jurisdiction  until  notice  is  given,  74 
judgment  against  principal  should  be  conclusive  on  surety,  169,  178 
conclusive,  whether  in  evidence  or  pleaded,  1414,  1415 


1646  Index. 

Why  (continued). 

strangers  not  bound  by  record,  147 

or  third  persons  are  not  bound  by  decrees,  114,  115 
Widow — 

accepting  dower  cannot  dispute  husband's  title,  856 
acquiescing  in  mortgage,  when  concluded,  1037,  1040 
barred  from  claiming  dower  by  conveyance,  858 

selling  property,  856,  857 
cannot  take  advantage  of  secret  equities,  1100 
concluded  by  her  election,  1178 
bound  by  estoppel  that  binds  husband,  740 

title  derived  under  husband's  deed,  736 
failing  to  claim  homestead,  barred,  479 
how  barred  from  claiming  title,  853,  855 
may  bar  her  dower  before  assignment,  1244 

be  precluded  claiming  dower  by  ancestor's  covenants,  855 
paying  interest  on  mortgage  cannot  question  validity,  1171,  1172 
remaining  in  possession  cannot  deny  husband's  title,  856 
representations  at  sale,  which  prevent  her  claiming  dower,  853,  855 
selling  land  free  from  dower,  cannot  claim  it,  1199 
standing  by,  seeing  property  sold  without  asserting  claim,  853,  854 

cannot  deny  her  husband's  seizin,  851 
when  estopped  from  denying  grant,  1009,  1010 
when  prevented  setting  up  paramount  title,  1009,  1010 
Wife- 
acts  and  representations  of  which  bind  her,  1235,  1236 
bound  by  husband's  location  of  boundary  line,  1276 
doctrine  of  equitable  estoppels  in  regard  to,  1231,  1260 
making  disclaimer,  when  bound  thereby,  1137 
not  licensed  to  commit  fraud,  1235,  1237 

of  a  lunatic,  when  she  cannot  deny  validity  of  conveyance,  1238 
when  bound  by  her  contracts,  1236 

estopped  from  setting  up  title,  1235 

she  has  burden  of  establishing  'bona  fides  of  judgment,  42 


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